A woman had a pacemaker. She went to her doctor. She was told her pacemaker had about five to six months battery life before needing to be replaced. A month later, the woman died of cardiac arrhythmia.
During an autopsy the pacemaker was removed and tested. The battery voltage was below end-of-life level, contrary to what she had been told. The manufacturer argued that the battery voltage was lower after autopsy because it was not at body temperature.
The woman’s estate sued the doctor and manufacturer. The estate retained two experts – an electrical engineer and a cardiologist. The electrical engineer concluded that the pacemaker had failed. The cardiologist concluded that the manufacturer had provided to the doctor an overly optimistic estimate of the pacemaker’s remaining battery life. He attributed this to faulty information provided by the doctor’s nurse to the manufacturer.
Sound like a slam-dunk case? The court dismissed the case on summary judgment. The estate appealed and lost.[1]
The problem is that neither the engineer nor the cardiologist stated plainly that battery failure or faulty information provided to the manufacturer caused the woman’s death.
The engineer concluded there are several reasonable hypotheses to explain why the woman died, but these he could not test them without access to the pacemaker. However, the estate did not seek access to the pacemaker in discovery, and did ask for a continuance to do so until oral argument on the summary judgment motion. The trial court denied the continuance because it was requested late – a ruling upheld by the Court of Appeals.
As the Court of Appeals held – proof of causation is not assumed, and “must be based on more than mere conjecture or speculation.”[2]
If you have a personal injury, product liability, or medical malpractice claim – speak to a personal injury attorney. Few cases are a slam dunk. A personal injury attorney can help assess the best strategy to present the strongest case possible.
For further reading, see Battery Included on the defense oriented Drug and Device Law blog.
By personal injury attorney Travis Scott Eller