The United States Court of Appeals for the Eleventh Circuit (“Federal Appellate Court”) held in its unpublished opinion filed on April 2, 2021: “At best, Pierre’s evidence presents a “mere possibility” that an insulation defect in the Scissors caused her thermal injury. But “a mere possibility of causation is not enough.” Hessen, 915 F.2d at 647. Because a verdict in Pierre’s favor would require the jury to engage in impermissible “speculation or conjecture,” “it bec[ame] the duty of the court to [enter judgment] for the defendant.””
The Underlying Facts
In her products-liability case, Elmitha Pierre (“Pierre”) alleged that she was injured by the Endowrist HotShears Monopolar Curved Scissors (“Scissors”), an electrosurgical medical device manufactured and sold by Intuitive Surgical, Inc. (“Intuitive”). The plaintiff contended that Intuitive was both negligent and strictly liable for the Scissors’ defective design, and both negligent and strictly liable for failing to warn them of the resultant danger from the Scissors.
Pierre suffered a thermal injury (a burn) to her bowel during a robotically assisted hysterectomy performed on January 24, 2014. Pierre’s surgeon, Dr. YatMin Chen, performed the surgery using the da Vinci Surgical System, a robotic surgical device manufactured and sold by Intuitive that allows a surgeon to conduct minimally invasive surgery using a variety of instruments, including electrosurgical instruments.
Intuitive manufactures electrosurgical laparoscopic instruments for use with the da Vinci system, including the Scissors, which use monopolar electric energy to cut and coagulate tissue, and the Fenestrated Bipolar Forceps (“Forceps”), which use bipolar electric energy. Both instruments were used in Pierre’s surgery. So too was a metal suction tube not manufactured by Intuitive and not docked to the da Vinci system.
Dr. Chen did not witness any arcing from any of the devices used during the surgery. He also testified that arcing, alone, does not necessarily indicate an insulation failure because arcing may come from either the tip of the instrument or the shaft of the instrument. And because arcing occurs quickly, it is difficult to determine from which end arcing comes. Dr. Chen testified that he believed Pierre’s injury was caused by the metal suction tube conducting energy from one of the electrosurgical instruments to the bowel. In his view, the source of the energy was “the bipolar, because [he] didn’t fire the monopolar” at the time he believes the injury occurred. In other words, Dr. Chen believed that it was “more likely” that energy from the Forceps—not the Scissors—transferred to the metal suction tube, which was near Pierre’s bowel, and inadvertently conducted energy to the bowel.
In granting summary judgment on the design-defect claims, the district court explained that two elements of Pierre’s claims were disputed: (1) whether the Scissors were defective or unreasonably dangerous, or both; and (2) if so, whether such defect proximately caused Pierre’s injuries. As to the first issue, the district court found that Pierre presented sufficient evidence to create a genuine issue of material fact as to whether the Scissors used in her surgery were defectively designed under Florida law.
But the district court found that Pierre’s claims failed for lack of proof of causation. The district court stated that expert testimony was required to establish causation in this products-liability case, and that Dr. Chen was Pierre’s only expert on that issue. But Dr. Chen’s testimony, in the district court’s view, was insufficient. Accordingly, the district court concluded that Pierre had not produced sufficient admissible evidence to create a genuine issue of material fact as to causation—a necessary element of her design defect claims.
Federal Appellate Court Opinion
The Federal Appellate Court stated, “The central flaw in Pierre’s argument is that no reasonable construction of Dr. Chen’s testimony supports her claim that Dr. Chen identified an insulation defect as the most likely cause of her injury … Dr. Chen testified that he believed Pierre’s injury was caused by the metal suction tube conducting energy from one of the electrosurgical instruments to the bowel. While that opinion is not inconsistent with an insulation defect in the Scissors, Dr. Chen’s testimony otherwise fails to support Pierre’s theory … in Dr. Chen’s view, it was “more likely” that the injury was caused because thermal energy from the Forceps—not the Scissors—transferred to the metal suction tube, which was near Pierre’s bowel, and inadvertently conducted energy to the bowel.”
The Federal Appellate Court held “the district court properly granted summary judgment in favor of Intuitive.”
Source Pierre v. Intuitive Surgical, Inc., No. 20-11311.
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