It’s reassuring to read decisions in which a court embraces its role as gatekeeper and stops a claim from proceeding to trial with evidence that, by its very nature, would require a jury to speculate.  For us, it’s doubly reassuring when it involves a medical device claim.

Young v. Olympus America, Inc., 2012 U.S. Dis. LEXIS 9096 (W.D. Tenn. Jan. 26, 2012), involved plaintiffs who claimed that the defendant’s medical device (a bronchoscope) was defective and, when used during their father’s bronchoscopy procedure, caused an infection.  Id. at *2-3.  Plaintiffs’ only claim remaining at the time of this summary judgment decision was an implied warranty claim, which when applied under the Tennessee Products Liability Act reads much like a manufacturing defect claim.  Id. at *7-8.

Plaintiffs believed they had sufficient evidence to get to a jury.  In particular, they offered evidence that only a few months after the father’s bronchoscopy procedure the defendant instituted a recall of several models of its bronchoscopes due to a manufacturing defect (a loose biopsy port) that plaintiffs’ expert claimed led to the infection.  Id. at *4-5, 11.  Moreover, plaintiffs had interrogatory responses in which the hospital at which the bronchoscopy was performed admitted that it received a recall notice, it inspected the bronchoscopes in its inventory, it found two different models in stock, and “one or both” of those models were subject to the recall.  Id. at *12-13.  Plaintiffs argued that these admissions and the expert’s opinion, along with the fact the father contracted an infection, should be enough to present the case to a jury.  Unfortunately, some courts might agree.

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