The 6th Circuit affirmed a summary judgment ruling this week in a shoulder pain pump case. The court found that as of 2004, Stryker did not know that its drug pumps could cause shoulder cartilage damage or that additional warnings would have deterred his surgeon from using the device. Plaintiffs argued that safety signals were in the literature since 1933 and emerged within several pain pump manufacturers’ internal files, alerting the companies of the risks associated with pain pumps. But the plaintiff did not claim that Stryker knew its pain pumps could cause chondrolysis because there were no reported cases of chondrolysis linked to anesthetics until 2005.
Plaintiff’s argument was essentially: “You should have been able to figure it out.” Rodriguez claims instead that Stryker should have known about the risk. Plaintiff pointed to 13 articles that it claims put Stryker on notice about the danger of using its pain pumps inside a joint. Clearly, the plaintiffs see foreseeability more broadly than chondolysis and more like, “Did you know that there might be something rotten in Mudville that let you know there was a concern with pain pumps and shoulders?”
This inferential argument was not persuasive to the 6th Circuit. All three judges on the panel were nominated by Republican presidents. Let’s be honest, not exactly the panel you expect to go out on a limb to paint a broad brush on foresseability.
You can read the full opinion in Rodrigeuz v. Stryker here.