• Chism v. Ethicon Endo-Surgery, Inc., et al. No. 4:08-CV-00341 (E.D. Ark. Aug. 27, 2009)
  • October 2, 2009 | Authors: Karen A. Gibbs; Rogelyn D. McLean
  • Law Firms: Crowell & Moring LLP - Irvine Office; Crowell & Moring LLP - Washington Office
  • The U.S. District Court for the Eastern District of Arkansas denied Ethicon Endo-Surgery, Inc.'s ("Ethicon's") summary judgment motion because there existed questions of fact as to whether the medical device in question was used during the plaintiff/patient's surgery. The court rejected Ethicon's argument that the plaintiff had failed to rule out other causes for her injury as an improper basis for imposing summary judgment against the plaintiff.

    The plaintiff, Sharon Chism, underwent gastric bypass surgery during which the surgeon used a cutter/stapler to create a smaller stomach for the plaintiff. The day after the surgery, the plaintiff had an accelerated heart rate and was diagnosed with a leak resulting from the previous day's surgery.

    The plaintiff sued Ethicon, alleging that one of Ethicon's staplers was used during the surgery and had "malfunctioned resulting in a failed staple line, and an open bowel." The plaintiff brought claims for negligence, strict liability design defect and breach of warranty.

    Ethicon moved for summary judgment, arguing that the plaintiff (1) failed to establish that Ethicon's device was used during the plaintiff's surgery and (2) failed to "negate other possible causes" of her injury. The court rejected Ethicon's arguments.

    The court found that there was at least an existing question of fact as to whether Ethicon's stapler was used during the surgery. While the surgeon's notes did not specifically reference Ethicon's stapler, the surgeon testified that he used Ethicon's stapler during the plaintiff's surgery. The court also rejected Ethicon's arguments on causation, concluding that issues of causation were "better suited for cross-examination, rather than summary judgment." As a result, the court denied Ethicon's motion for summary judgment in its entirety.