June 29, 2009
Continuous Infusion Pain Pump Case Dismissed
Judge K. Michael Moore of the United States District Court for the Southern District of Florida granted summary judgment for the defendant in Kilpatrick v. Breg, Inc.: Download Kilpatrick - Order for SJ, one of about 200 continuous infusion pain pump cases currently pending in various state and federal courts across the country. The case was set to begin jury trial on July 6, 2009. Like other plaintiffs in these cases, Kilpatrick alleged that the continuous infusion of local anesthetic into his shoulder joint by pain pump caused him to develop post-arthroscopic glenohumeral chondrolysis ("PAGCL"), a condition marked by the rapid deterioration of the cartilage of the shoulder. Judge Moore granted summary judgment after ruling that Kilpatrick's causation evidence and testimony from his medical causation expert Gary Poehling, M.D., were inadmissible under Daubert v. Merrell Dow Pharm., because the cause of PAGCL continues to elude the scientific and medical communities. Because Kilpatrick could not prove that the pain pump could or did cause his PAGCL, Judge Moore granted summary judgment and dismissed the case on its merits.
Post-Sale Duties Update
An article in the most recent issue (74:3) of the Brooklyn Law Review by Ken Ross and J. David Prince provides an overview of the post-sale duty sections of the Restatement (Third) of Torts: Products Liability. The article discusses the relevant case law and the Restatement (Third)'s impact on the law's development since its adoption by the American Law Institute ten years ago. The article, one of several in an entire issue devoted to the Restatement (Third), also provides a brief discussion of regulatory post-sale duties. The issue is not yet in print but here is a PDF file of the Ross-Prince article: Download BLS PrinceandRoss vol74 32009