Today we report on Black v. DJO Glob., Inc., — P.3d —-, 2021 WL 2346038 (Idaho 2021), a short and sweet decision rejecting yet another plaintiff’s attempt to maintain a product-liability claim without evidence of a defect in the medical device at issue. Holding that neither the “malfunction theory” nor the related res ipsa loquitur doctrine excused the plaintiff’s failure to produce evidence of a defect, the court affirmed summary judgment in favor of the defendant manufacturer.
The Black plaintiff claimed that she suffered burns when undergoing interferential current therapy, which treats patients by electrically stimulating nerves and muscles. The plaintiff alleged that her injury was caused by defective electrode pads.
Because the electrode pads were disposed of after their use, the plaintiff had no direct evidence that the electrode pads were defective. The plaintiff argued that she did not need to produce such evidence to avoid summary judgment because a defect could be inferred under the “malfunction theory” or the res ipsa loquitur doctrine. As already noted, the court rejected the plaintiff’s contention.
Under Idaho’s “malfunction theory,” a plaintiff who lacks “direct evidence of an identifiable, specific defect” can still prove a defect through “evidence of a malfunction … and the absence of evidence of abnormal use and the absence of evidence of reasonable secondary causes which would eliminate liability of the defendant.” Black, 2021 WL 2346038, at *4. To invoke the malfunction theory, however, a plaintiff must “demonstrate that the product ‘malfunctioned.’” Id. at *5. To do so, “the product at issue must be of a type which permits a jury to infer that an injury would not have occurred had there not been a defect attributable to the manufacturer.” Id.
The Black plaintiff’s reliance on the malfunction theory foundered on that requirement. She conceded that—as stated in the relevant operating manual—“burns are a known side effect associated with electric stimulation therapy and carbon electrode pads.” 2021 WL 2346038, at *5. But the fact that she “suffered an injury that is the precise type of injury that is known to result from” use of the device at issue “precludes a jury from inferring that ‘an injury would not have occurred … had there not been a defect attributable to the manufacturer.’” Id. (quoting Farmer v. Int’l Harvester Co., 553 P.2d 1306 (Idaho 1976)). Consequently, the court concluded, the plaintiff had failed to “carry her burden of demonstrating that the electrode pads malfunctioned” and summary judgment was properly entered against her.
Moreover, the court held that the result would be identical under the res ipsa loquitur doctrine. The court explained that “[t]he doctrine of res ipsa loquitur is applicable when two elements co-exist: (1) the agency or instrumentality causing the injury was under the exclusive control and management of the defendant; and (2) the circumstances were such that common knowledge and experience would justify the inference that the accident would not have ordinarily happened in the absence of negligence.” The court found that the plaintiff failed to establish either of these necessary conditions. Indeed, the plaintiff could not get past the first hurdle because “the electrode pads were not under the exclusive control and management of” the defendant manufacturer. 2021 WL 2346038, at *6. And, even if they had been, the plaintiff’s injury was, as the court previously found, not the sort that “would not have occurred had there not been a defect attributable to the manufacturer.” Id. Accordingly, summary judgment was justified on this ground too.
As noted, the Black court is the latest court to rightly reject a plaintiff’s attempt to use the malfunction theory or the res ipsa loquitur doctrine to avoid dismissal of product-liability claims involving a medical device. For discussions of previous cases holding the malfunction theory and the res ipsa loquitur doctrine inapplicable in such cases, see our earlier posts here, here, here, here, here, here, here, and here, for example.