October 21, 2015 Practice Points

Evidence of Product Defect Required to Survive Summary Judgment

By Mario Horwitz

A recent opinion from the U.S. District Court, District of Wyoming, reaffirms the need for a plaintiff to adduce competent evidence of a product defect to survive summary judgment.

Tolman v. Stryker Corp., No. 13-CV-13-ABJ (D. Wyo. June 4, 2015), involved the implantation of a prescription orthopedic trauma device known as an intramedullary nail, after the plaintiff’s hip was shattered following a severe ATV accident. Intramedullary nails are intended to provide temporary fixation of complex fractures to allow time for the bone fragments to consolidate. Non-union of the fracture segments is a clinical risk that can lead to device breakage. Almost four months after implantation, but before the plaintiff’s hip fragments had completely healed, the device fractured. The plaintiff’s medical records clearly indicated that the bone fragments had failed to completely heal, leading to device “failure.”

Under Wyoming law, as in most jurisdictions, to establish a product “defect,” it is not enough for plaintiff simply to show that injury occurred during product use. “Instead, a plaintiff must show a defect in the product, which he may do either by presenting evidence of a specific defect or by inference.” Campbell v. Studer, Inc., 970 P.2d 389 (Wyo. 1986). The requirement of showing a defect is one element common to every products liability case, whether it is brought on a theory of negligence, breach of warranty, strict liability, or a combination of theories. McLaughlin v. Michelin Tire Corp., 778 P.2d 59 (Wyo. 1989).

When the plaintiffs disclosed FRCP Rule 26 experts, they disclosed only treating physicians, and did not serve case-specific expert reports. Instead, the plaintiffs contended that the treater’s medical records would serve as their expert “reports.” Needless to say, the medical records did not contain any expert opinions regarding product defect, or how the defect proximately caused the plaintiff’s injury. The plaintiffs believed that they could rely on the “inference of defect” they claimed arose from the breakage of the device. Under Wyoming substantive law, however, the inference of defect only arises when a prima facie case can be presented that there was no abnormal use of the product, or that there were no “reasonable secondary causes” for the failure. Loredo v. Solvay Am., Inc., 2009 WY 93 (2009); see also Rohde v. Smith’s Medical, 2007 WY 134 (2007).

In response to the perceived deficiencies in the plaintiffs’ “disclosure,” the defendant first moved to stay its obligation to disclose experts, maintaining there was no case to meet, and then moved for summary judgment. The court’s opinion recognized that “Plaintiffs made no attempt to argue that there is evidence of a specific defect that caused the [product] to fail. Instead, the plaintiffs only rely on the inference of defect rule.” Under Wyoming law, the inference of defectiveness arises “if a prima facie case can be presented that there was no abnormal use of the product or that there were no reasonable secondary causes for the defect.” The court held that at the summary-judgment stage, a plaintiff relying on the inference has the burden to present evidence to establish a genuine dispute of material fact on the reasonable secondary cause (non-union) advanced by the defendant. The plaintiffs’ medical records, however, clearly disclosed that the bone had not healed (i.e., non-union) prior to the product “failure.” In the words of the court, “It is difficult if not impossible to understand how a medical record that states the bone is not healed could create a genuine issue of material fact that nonunion is not a reasonable secondary cause of the [product] failure.”

The court correctly concluded that the plaintiffs’ attempt to rely solely on the medical records was insufficient.

Plaintiffs could have hired an expert to explain that nonunion was not a reasonable secondary cause . . . but for whatever reason did not do so. Plaintiffs also could have relied on an affidavit or declaration from Mr. Tolman’s treating physicians to explain that nonunion was not a reasonable secondary cause . . . but also did not do so. In the end, Plaintiffs failed to meet their burden under the inference of defect rule.

Judgment was entered for the defendant on both the strict liability and negligence claims. Note to plaintiffs: “It broke, therefore I have a case” is not the law in most jurisdictions, including in Wyoming. Don’t count on getting to the jury just because a product allegedly “failed.”

Mario Horwitz, Sedgwick LLP, Los Angeles, CA

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