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And what is so rare as a day in June?”   How about a drug and device law opinion out of Wyoming?  We do not often get the chance to discuss Wyoming products law.  That is not terribly surprising, given that Wyoming is the least populous state in the union.  When we clicked on the Wyoming entry in our handy index (located on the lower right side of our web page), we came up with one single solitary entry, dated August 24, 2007.  In that ancient post, we applauded the Rohde case, in which the Wyoming Supreme Court recognized the learned intermediary rule.  But learned intermediary was a relatively small part of the Rohde case.  As we said at the time: “The majority of the opinion consists of a cogent discussion of why simply pointing to a broken implant doesn’t establish either a design or manufacturing defect.”  All well, and good, as far as that goes.

It is nothing short of astonishing how many product defect cases get filed, survive motion practice, generate years of expensive, painful discovery, and get plopped down in front of a jury with absolutely no evidence of any actual defect.  All we know is that a product was used and something bad happened.  The fact scenario usually does not rise to the level of res ipsa loquitur (that is, the circumstances speak for themselves and make it pretty clear something went kablooey with the product – such as when a mouse races out of the soda bottle, eventually raining money all over some lucky plaintiff lawyer).  Nevertheless, some courts wave the no-defect case along to the jury, praying for a settlement to remove the annoyance from the docket.  Such a judicial ruling (or non-ruling) is bad for the system.  You might even call it defective.

Wyoming is one of those states that affords a plaintiff an opportunity to get to a jury on the defect issue even absent direct evidence of an actual defect. A plaintiff can elude summary judgment via an “inference of defect.”   What is that, you ask?  The plaintiff can invoke the inference of defect by showing that there “are no other reasonable causes for the product’s failure” (quoting Rohde).    How can a plaintiff rule out alternative causes?   That cannot be easy.   Or it shouldn’t be, given how complex medical and science issues are.  Perhaps a plaintiff attorney will argue for exclusion of alternative causes on the ground that there is nothing to connect them to the alleged injury save their existence.  Fine, but that is probably true for the product as well.  One way to exclude alternative causes is to hire an expert who will happily trade his or her conscience at a rate of $600 per hour and happily rule out any alternative cause in sight.  But absent such an irredeemably flexible expert, ruling out alternative causes can be a challenge.  The reality of things seldom lends itself to such a simple exercise in differential etiology. Moreover, the reality of things might simply be that there was no defect in the product.  Sometimes bad things happens for no reason, at least no reason that would support a plaintiff verdict. 

In the recent case of Tolman v. Stryker Corp., No. 13-CV-13-ABJ (D. Wyoming June 4, 2015), a federal court applied the inference of defect test with real care, and ended up finding no such inference.  A man had broken his hip in an ATV accident in September 2008. He underwent surgery in which a Gamma Nail device had been implanted in him to stabilize his hip and femur.  He subsequently went through a rehabilitation regime to facilitate the healing process.  It was, of course, a gradual thing.   Unfortunately, in December 2008 the man heard a loud crack.  This was not a happy sound. It was a harbinger of pain, failed surgeries, and litigation.  He, along with his wife, sued the defendant for negligence, strict liability, and breach of warranties.   The warranty claims were time-barred.  Under Wyoming law, both the negligence and strict liability causes of action required a showing of defect.  The plaintiffs freely admitted they had no direct evidence of product defect.  Rather, they relied on the inference of defect.  The issue was whether the plaintiffs had excluded all alternative causes, including the one that the defendant relied upon, that there was never a complete union of the hip and femur.

The plaintiffs did not hire an outside expert.  Instead, they designated treating doctors as experts and relied upon the medical records to show that a defective product, not the simple fact that the bones did not achieve the required union, accounted for the failure and injury.  The problem for the plaintiffs was that the medical records did, in fact, contain notations that nonunion was a reasonable secondary cause.  The treating doctor explicitly said as much.  The plaintiffs found a couple of passages in the medical records that they liked better, where the doctors discussed how the bones were healing.  Even putting aside the cherry-picking nature of the plaintiffs’ record review, “healing” is not the same as “healed.”  Rather, “healing” means “not healed yet.”  There was an item in one record where a doctor said that there were aspects of the fracture that “appear to be healed,” but that same doctor’s postoperative diagnosis was that there was nonunion.

Here is how the court summarized the plaintiffs’ approach:  “Plaintiffs’ attempts to rely on the medical records alone are insufficient.  Plaintiffs could have hired an expert to explain that nonunion was not a reasonless secondary cause of the Gamma Nail #3’s failure, but for whatever reason did not do so.  Plaintiffs could also have relied on an affidavit or declaration from Mr. Tolman’s treating physicians to explain that nonunion was not a reasonable secondary cause of the Gamma Nail #3’s failure, but also did not do so.”  The medical records – the reality of the case – not only did not support an inference of defect, they actually refuted it.  The court concluded that no reasonable jury could rule out nonunion as a cause of the injury and that, therefore, the plaintiffs had failed to carry their burden of supporting the inference of defectiveness.  Because the remaining causes of action required a defect as an element, the entire case was dismissed.

Look, we do not like the inference of defect.  But if it has to exist, at least courts should apply it with rigor.  The Tolman court did that, so now you will find two cases when you click on the Wyoming listing in our index, and both of them are as beautiful as Grand Teton National Park and as reliable as Old Faithful.

We offer a tip of the cyber cap to Mario Horwitz of the Sedgwick firm, and thank him for bringing this excellent result to our attention.