Moore, et al. v. Anesthesia Services, P.A., et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY Roland P. Moore and Judy L. Moore Plaintiffs v. Anesthesia Services, P.A., Christiana Care Health Services, Inc., Delaware Vascular Associates, P.A., Sonya Tuerff, M.D., Matthew Cooper, M.D., Michelle Pesek-McCoy, M.D., United States Surgical Corporation, Tyco Healthcare Group, LP, Ethicon, Inc., Ethicon Products Worldwide, and Johnson & Johnson Co. Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NUMBER 06C-01-013-JOH Submitted: December 21, 2007 Decided: February 15, 2008 MEMORANDUM OPINION Upon Motions of Defendants Ethicon, Inc., Ethicon Products Worldwide, and United States Surgical Corporation for Summary Judgment - DENIED Appearances: Gilbert F. Shelsby, Jr., Esquire, of Shelsby & Leoni, Wilmington, Delaware, attorney for the plaintiffs John D. Balaguer, Esquire, of White & Williams, Wilmington, Delaware, attorney for Sonya Tuerff, M.D., and Delaware Vascular Associates, P.A. Robert S. Goldman, Esquire, of Phillips Goldman & Spence, Wilmington, Delaware, and Michael L. Walden, Esquire, of Shook Hardy & Bacon, LLP, Kansas City, Missouri, attorneys for defendants United States Surgical Corporation and Tyco Healthcare Group LLP David P. Primack, Esquire, of Drinker Biddle and Reath LLP, Wilmington, Delaware, and Kenneth A. Murphy, Esquire, of Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania, attorney for defendants Ethicon, Inc., Ethicon Products Worldwide, and Johnson & Johnson HERLIHY, J. Plaintiff Roland P. Moore went to the Christiana Hospital ( Hospital ) for a carotid artery endarterectomy. Wh ile in a recovery room subsequent to the proced ure, the suture broke, causing significant bleeding. A second operation occurred. Moore, during or shortly after this procedure, suffered a major stroke and has apparently suffered significant permanent injuries. Originally, Moo re and his wife sue d Christia na Ho spital and the surgeon who performed both procedures and others associated with the hospital. Discovery undertaken subsequent to the initial complaint raised a question of whether the suture which broke was defective. That suture was discarded by H ospital staff at the time of the procedures. After learning of the potential suture defect, the plaintiffs sued the two suture manufacturers who supplied sutures to the Hospital, Ethicon Products Worldwide, and Johnson & Johnson ( Ethicon ), and United States Surgical Corporation ( USSC ). The surgeon believes the suture was Ethicon s but the b illing recor ds indicate it was USSC s. Each has moved for summary judgment, basically arguing the loss, i.e., spoliation, of the suture stops this action in its tracks and that the plaintiffs cannot prove the only reason for what happened to the suture was a defective product. While Ethicon argues it briefly, USSC argues at greater length tha t plaintiffs cannot even identify which of these two manufactu rers product w as, in fact, used. For the reasons stated herein the motions are DENIED. 1 Factual Background The action giving rise to the summary judgment motions was initially filed by Plaintiff Roland P. Moore and Judy L. Moore ( plaintiffs or Moore ) in January 2006. The initial Complaint alleged medical malpractice against the Hosp ital and the surgeon, Dr. Sonya Tuerff ( Dr. Tu erff ). Th e plaintiffs late r amen ded their C ompla int namin g Ethicon and USSC alleging two produc t liability claims, negligence/product liability and breach of the im plied warranty of merchan tability. On June 23, 2004, Moore was admitted to Hospital to receive c arotid endarterectomy surgery to be performed by Dr. Tuerff. The procedure entailed clamping off a portion of his artery, cleaning out the plaque contained in the artery, and subsequently patching the area and using a very thin 6-0 suture.1 After the surgery, Dr. Tuerff spoke to Moore and showed him the plaque she removed. He was then transferred to the Post An esthesia Reco very Unit ( P ACU ). At som e point after getting there , a nurse noted he was awake, alert, talking, and wanting to go home. A little later, thereafter, a nurse noted that Moore suddenly turned blue and started bleeding from his neck. There is a potentially relevant factual issue in this time period. There is no record or nurse s note that Moore became agitated prior to the nurse seeing him turn blue and bleed. Dr. Tuerff testified, however, he was seen thrashing around in the PAC U before the bleeding started. 1 Def. Ethicon s Resp., Ex. A , Depo. of D r. Tuerff. 2 Moore lost conscio usness and had to be re-intubated. Dr. Tuerff performed a second surgical proc edure. D uring it, she observe d a large h ematom a. Plaintiffs c laim this was caused by a failure of the suture and patch used in the first procedure. When D r. Tuerff was deposed, she described the salient events in this way: (Plaintiffs C ounsel) Did you tell Mr. Moore or his family why the patch failed in his case? ***** Witness: I had a conversation with the family after the first surgery and told them that he w as fine. Everyth ing looked fine. We had done the surgery without any problem s and he was actu ally quite calm and when I left him. After the second procedure, I talked to the family and I explained to them that there had been a rupture of the suture, that I had though it w as due to, you k now, his activity - - I m not sure exa ctly why it happened - - and that we repaired the suture. I had been told that the patient became very agitated when he was in the recovery room, as soon as he got there, was complaining. He wanted to go have a cigarette. He was cursing. He was very disruptive to the staff. They attempted to calm him down. And then when they said, okay, we ll move him to the stretcher, that he became very agitated and then all of a sudden his neck started to bleed. He had difficulty with breathing. I told the family that, you know, he was lucky, in my opinion, to still be alive. (Plaintiffs C ounsel) When you said to the family that there had been a rupture of the suture, did it tear from the anasto mosis site? 3 Witness: No. (Plaintiffs C ounsel) Okay. Witness: Oh, excuse me. The anastomosis site? (Plaintiffs C ounsel) Right. Witness: Yes, it was along the anastomosis site. (Plaintiffs Coun sel) In other words - - I just w ant to make sure I m clear. When you said that there was a rupture of the suture, the suture itself that you put in - - the sutures themse lves - - did n ot tear; is tha t correct? Witness: No. The sutures b roke. The su ture itself broke. It did not tear through the tissue. It did not tear through the patch. The suture ruptured, broke. (Plaintiffs Coun sel) So the suture which you had put in on both sides was still in tissue and it actually rup tured, broken in half? Witness: Well, I don t kn ow abo ut in half, b ut it was c omple tely fractured . I mean - - do you mean at what p oint was it? 2 When asked about the surgery, the suture, and the suturing process Dr. Tuerff described them as follows: Witness: But this suture h as to be v ery fine in order to not tear the tissue that it s sewing, but it can t be so fine that it doesn t hold, so it s always a judgment of how fine of a suture or how th ick of a suture to use. This is a standard suture that we used. I mean, every single person I h ave eve r worke d with on a carotid has used this type of suture for the anastomosis. 2 Dr. Tuerff deposition dated May 22, 2006. 4 But it s part of my job for vascular surgery to look at the suture and inspect it when the scrub tech or the nurse hands it to me. I have to make sure that there s no knot in it, make sure that both needles are there because there s two needles, one at each end. And if there s only one needle when they give it to you, you have to start all over. And you have to make sure that there s no obvious damage, because from putting it in the package, it comes curled up and wrapped in the package. They take it out. They put it on the needle holder for you, then you get it. I have magnifying glasses. I look at it, inspect it for what I can grossly see is a damage d area, and then I can start sewing with it. And the whole time, I m observing it while I m sewing to make sure that there s no techn ical proble ms. I m ean, I hav e to put the suture in, perfect position, tie the knots down. A lot of time s, those su tures will b reak w hen you re tying k nots from excessive tension or just a damage in the area. You try to be consistent and do the same thing that you were taught every day. And som e of the time, there are knots in the sutures. Some of the time, they do fracture. Have I seen it happen I recovery room? No, but I never had a patient act agitated and start moving around within, you know, an hour of having surgery either. M ost patients don t do that. (Plaintiffs C ounsel) Are you blam ing the ru pture of the sutures on Mr. Moore? Witness: I am blaming it on the situation that caused in creased p ressure to the suture. (Plaintiffs C ounsel) Are you blam ing Mr. M oore for that? Is that your position? 5 Witness: I think his actions contributed to the suture fracturing, yes. (Plaintiffs C ounsel) I will go back to the rupture of the sutures. You said that you inspected the sutures before you put them in - Witness: Yes. (Plaintiffs C ounsel) - - is that corre ct? And when you did, did you notice anything unusual or abnormal about the sutures? Witness: (Witness shakes head.) If I would have, I would have gotten a new suture. (Plaintiffs C ounsel) Is it your contention that the suture in this case was somehow improperly manufactured or was defective? Witness: I m not sure what caused the weakness to occur at that particular location, during th is particular time, bu t I inspect it to the best of my ability, which is a routine fo r that I do in all of may cases that I do an astomo sis on, and I didn t see any obv ious defe ct. Could there have been a defect in the suture? Could it have been stretched at some point during the manufacturing, the packaging, or even w hen the n urse took it out to cause a weakened spot that, when there was extra pressure, to cause it to break? There m ust have been . I can t otherw ise explain why it w ould have fractured. (Plaintiffs C ounsel) So there had to have been som e weak ness in the suture material itself for that to have caused a fracture in this circumstance? Witness: I think so. (Plaintiffs Coun sel) In terms of who handles the suture material before the procedure and before you put the su ture ma terial in obvio usly, you inspect it and you touch it; is that correct? 6 Witness: Yes. 3 Follow ing the sec ond surg ery, M oore suff ered a sev ere stroke . Plaintiffs se eks to recover for serious permanent med ical conditions, including but not limited to paralysis, loss of mental capacity and loss of bodily functions 4 allegedly suffered after the surgeries. Hospital personnel discarded the suture used in the endarterectomy performed on Moore. Both Ethicon and USSC sutures were being used for surgeries at the Hospital at the time of Mr. M oore s proced ure. In her depo sition, Dr. Tuerff stated that she thought the suture felt like one manufactured by Ethicon. The billing records from Moore s surgery, however, indicate that a USSC s suture was used. Applicable Standard In order for a party to be entitled to summary judgement, that party has the burden of showing that there are no genuine issue of material facts and he or she is entitled to judgement as a matter of law.5 When considering a motion fo r summ ary judgem ent, a court is required to examine the present record, all pleadings, affidavits and discovery.6 The court m ust view the evide nce in the light most favorable to the non-moving party.7 3 Id. pp 27 - 31. 4 Id. at ΒΆ 25. 5 Grasso v. First USA Bank, 713 A.2d 304, 307 (D el. Super. 1998 ). 6 Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322 (Del. Supe r. 7 Pierce v . Internatio nal Ins. C o. of Ill., 671 A2d 1361, 1363 (Del. 1996). 1973). 7 If a motion for summary judgment is properly supported, the burden shifts to the nonmoving party to d emon strate that the re are m aterial issue s of fact. 8 The motion for summary judgement will be denied if the Court finds any gen uine issue s of mate rial fact. 9 Discussion Both defendants argue that the H ospital s dis card of th e suture in questions means, under the doctrine of spoliation, plaintiffs action against them must be dismissed. Delaware has long recogniz ed the general rule that where a litigant intentionally or recklessly destroys pertinent evidence, an inference arises that such evidence would be unfavo rable to his case.10 Both defendants cite Burris v. Kay Bee Stores 11 as authority for the proposition summary judg ment is a remedy in a spoliation case. There are two reasons to cast doubt on that argument. The first is that the Court in Burris, while referring to the alternative of awarding summ ary judg ment, d id not use that vehic le to dism iss a case in which there had been spoliation.12 It used, instead, the inference approach long recognized in Delaware. 8 Kysor Industrial Corp. V. Margaux, 674 A.2d 889, 894 (D el. Super. 1996 ). 9 Hoechst Celanese Corp. v. Certain Underwriters of Lloyd s of London, 673 A.2d 164, 170 (D el. 1996). 10 Collins v. Throckmerton, 425 A.2d 146, 150 (Del. 1980); Lucas v. Christiana Skating Center, Ltd., 722 A .2d 124 7, 1248 (Del. Super. 1998 ); Sears, Roebuck and Co. v. Midcap, 893 A.2d 542, 548 (D el. 2006). 11 1999 W L 124086 3 (Del. Supe r.). 12 Accord Joseph v. Jamesway Corp., 93C-12-18 2, Herlihy, J. (D el. Super. 1997 ). In that case, to o, this Co urt - and ju dge - dec lined to adopt a per se rule of dismissal where the prod uct evide nce had been los t. 8 And this case presents the second reason for not dropping a steel curtain on plaintiffs action against Ethicon a nd USS C. No pla intiff discarded this evide nce. A Hospital staff person did. Moore was clea rly not in control of or in the position to control the suture nor any decision to keep or discard it. Defendants cite only cases where the inference is utilized against the spoiler not an innocent third party, such as Moore. Of course, the spoliation issue will arise if there is any Hospital or other related defendant action against either or both of these defendants. But, at the moment, it is not a doctrine to stop the plaintiffs case now or even an inference to be factored into these motions. The spoliation issue, however, is not divorced from the greater issue these two defenda nts raise. That issue de rives from the principle that to prove manufacturing negligence from circumstantial evidence (as this case would be), the conclusion of negligence must be the only inference possible from the circumstances. 13 These two defendants argue that there are other possible inferences besides negligent manufacture, to explain what happened to the suture in this case. Ultimately that may be correct. But there are two barriers present now w hich prohibit an award of summ ary judgm ent. The first is that plaintiffs want to pursue discove ry from each of th e defend ants on matters relating to suture failure. So far the defendants have resisted these efforts. 13 Ciociola v. Delaware Coca-Cola Bottling Co, 172 A.2d 252, 257 (D el. 1961). 9 Plaintiffs must be given a reasonable opportunity to pursue that discovery. That alone is sufficient to bar an award of summary judgment at this juncture f or either d efendan t.14 The other cur rent imp edimen t to their motions is the testimony of Dr. Tuerff. She offers, at this point, an explanation for the suture failure which is an inference of negligent manufacture. She said the suture ruptured, that it broke, and that it may have been defective. While she has had prior experience with sutures that broke, she has never had this happen before and never at the post-operative stage. She testified about how she tested it before u sing it, and so forth. T hat testim ony is enough to show there is a genuine issue of material fact at this stage. At oral argument, however, the Court inferred that her testimony may not be enough to meet plaintiffs burden at trial to exclude other nonnegligent manufacturing causes. But for these motions at this point, Dr. Tuerff s testimony is sufficient to (1) support the need for further discove ry and/o r (2) show there is a g enuine iss ue of m aterial fact. The Court is compelled, of course, to note that Dr. Tuerff may attribute some of the suture or bleeding problems to M oore being agitated. First, there is a significant issue of fact as to w hether tha t was a ca use of the bleeding or suture rupture. Second, the agitation may have resulted from the suture failure and subsequent bleeding and not have precede d it. Thes e issues, to o, are to b e sorted o ut at a later p oint. 14 Tew v. Sun Oil Co., 407 A.2d 240, 242 (D el. Super. 1979 ). 10 USSC argues a t greater len gth an issue to wh ich Ethicon de voted less but joins. It cites deposition testimony from various Hospital personnel that the billing record showing USSC sutures w ere used is unrelia ble. Th ere are flaw s in this argument. One is that there is a significant, genuine factual issue concerning the suture s manufacturer. Dr. Tuerff believes it was Ethicon s. By experience, she relies on its feel in this procedure. The billing record, however, specifies a type of suture was used which is only made by USSC. But USSC has squeezed out of some hospital personnel the possibility that the billing record may be unreliable. In large part, that testimony was in respons e to hypothetical questioning and not so much the particular bill for Mr. Moore. The record is that a document says the suture w as USS C s and a billing cle rk testified th at, hypothetically, the bill could be inaccurate. USSC asks this Court on a motio n for sum mary ju dgme nt to ma ke an ina ppropria te credibility determination on a genuine issue of material fact. With that clear cut factual conflict, summary judgment cannot be awarded.15 Arguably, of course, the billing record contradic ts Dr. Tuerff s testimon y that the su ture wa s Ethicon s. It, in turn, could have argued that the billing record meant it was now entitled to summary judgment. For the same reasons controlling USSC s argument on this issue, Ethicon cannot now be dismissed. 15 Pullman v. Phoenix Steel Corp., 304 A.2d 334, 335 (D el. Super. 1973 ). 11 Conclusion For the reasons stated herein, the summary judgment motions of United States Surgical Corp. and Ethicon Products are DENIED. J. 12
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