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This blogger’s work from home experience has included a lot of time with two teenagers.  Granted, two relatively smart, funny, and generally OK to be around teenagers.  But teenagers, nonetheless.  So, I’ve been witness to some true common senseless moments.  Like twenty minutes of trying to start the lawnmower before checking if it had gas.  Like thinking a bag of raw potatoes belonged in the freezer, where they were found weeks later.  Like anything to do with a knife larger than a paring knife (we are truly lucky all 20 fingers are still attached).  And that’s beside the typical dirty dish in the sink rather than the dishwasher; dirty laundry next to but not in the hamper; and the miraculously always empty toilet paper roll.  Clearly common sense is experience driven and we are doing our best to turn these into teachable moments.  The teens did cook a complete dinner from scratch with only one minor nick, so we are making progress.  However, while common sense is a necessity in life, it’s often not enough in a drug/device products case.

That’s what plaintiff learned in Emmons v. Teleflex Incorporated, 2020 WL 6286304 (Ariz. Ct. App. Oct. 27, 2020).  Plaintiff received an epidural to assist with pain during childbirth.  When the nurse attempted to remove the epidural, she met with resistance and a piece of the device broke off and remained implanted.  Id. at *1.  Plaintiff’s lawsuit against the manufacturer of the device alleged only a manufacturing defect.  Plaintiff offered no expert evidence in support of her claim.  In response to defendant’s motion for summary judgment, plaintiff stated that was relying on the doctrine of res ipsa loquitur – the thing speaks for itself.  It means it is so obvious the accident was caused by negligence that the plaintiff does not need direct proof of negligence.

In a res ipsa case, the plaintiff typically has to prove (1) the injury is of a kind that ordinarily does not occur in the absence of negligence, (2) the injury is caused by an agency or instrumentality in the control of the defendant, and (3) the plaintiff is not in a position to show the particular circumstances that caused the injury.   Id. at *3.  But that is in a negligence case.  Plaintiff here only brought a strict liability manufacturing defect claim.  There the question is whether the product was in a defective condition and unreasonably dangerous.  So, the res ipsa questions are (1) whether the harm was the kind ordinarily caused by a product defect and (2) the harm, in the particular case, was not the result of other causes.  Id.

Here plaintiff argued that an epidural catheter doesn’t break absent a defect and that the nurse who removed it followed the instructions for removal; therefore, the defect caused plaintiff’s injury.  That’s a common sense argument.  But in a res ipsa product defect case, it’s not enough.

In some product liability cases, common knowledge may enable a layperson to conclude reasonably that the type of injury suffered by the plaintiff would ordinarily occur due to a defective product. However, this case involves removing a medical device, and an accident of this nature cannot solely be analyzed by common sense.

Id.  First, the Instructions for Use that accompany that epidural provide that the product can break if excessive force is used and explicitly warn against tugging or pulling on the device, offering an alternative removal technique if resistance is encountered.  Id. at *1.  So, without evidence to the contrary, plaintiff cannot support her contention that a break equals a defect.  Second, the plaintiff’s medical records indicate that the nurse encountered resistance in removal.  Plaintiff offers nothing in response to show that the nurse followed the manufacturer’s instructions for removal in that circumstance.  Id. at *4.

Finally, plaintiff’s lawsuit was not brought solely against the epidural manufacturer. She also sued the hospital for negligence by its employee during the removal.  Id. at *1.  While alternative pleading is certainly allowed, even encouraged, it does have its pitfalls.  Namely, “that [p]arties are bound by their pleadings and evidence may not be introduced to contradict or disprove what has been admitted or asserted as fact in their pleadings, and a party may not introduce evidence in contradiction of express allegations of [her] complaint.”  Id.  Meaning, you can’t place blame on the nurse on one hand and argue the injury was solely caused by the product defect on the other.

So plaintiff failed both parts of the res ipsa test – there was an explanation for the break that wasn’t a product defect (resistance) and plaintiff herself argued her injury was the result of a cause other than the break (the nurse).  Can’t have it both ways.   That’s just common sense.