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Major Daubert Victory for Medical Device Manufacturer in National Pain Pump Litigation

Florida
Jun 25, 2009

Kilpatrick v. Breg

CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE. CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE.
Heart monitor and pill icon - drug and medical device

In the first of several hundred "pain pump" cases to proceed to trial, a dismissal on summary judgment was awarded Friday, June 25, 2009, by a Florida judge to Breg, Inc., the manufacturer of the pain pump in Kilpatrick v. Breg.

Like other plaintiffs across the country, Kilpatrick alleged that the continuous infusion of local anesthetic directly into the shoulder joint by a pain pump caused him to develop post-arthroscopic glenohumeral chondrolysis ("PAGCL"), a condition marked by the rapid and diffuse deterioration of the cartilage in the shoulder. Judge K. Michael Moore of the United States District Court for the Southern District of Florida granted summary judgment after ruling that plaintiff's causation evidence and testimony from his medical causation expert were inadmissible under Daubert v. Merrell Dow Pharmaceutical, because of a lack of reliable scientific and medical evidence showing pain pumps can cause PAGCL. Without such evidence plaintiff could not prove that the pain pump could or did cause his PAGCL, summary judgment was granted and the case was dismissed on its merits.

The use of continuous infusion pain pumps for post-arthroscopic and open shoulder surgeries gained in popularity in the late 1990s and early 2000 time frame. The pump, which acts as a syringe or drug delivery device, provides the physician with an option to deliver a continuous flow of anesthetic into the operative site following shoulder surgery. Over the last few years hundreds of product liability suits have been filed across the country in state and federal courts alleging that the pain pumps were defective in design for failure to warn. The plaintiffs' bar has formed a "consortium" of lawyers and are focusing their energies on trying to establish the pain pump cases as the next big mass tort. This landmark ruling will set the stage for defending manufacturers of pain pumps against claims without any scientific basis to support theories of causation.

Click here for a copy of the Kilpatrick v. Breg Order.

Trial Team

  • Schmid, Kim
    Firm Vice Chair and Executive Managing Partner, Minneapolis
    612.672.3247
    Product Liability Litigation, Class Action and Multidistrict Litigation, Medical Device and Pharmaceutical
    Firm Vice Chair and Executive Managing Partner, Minneapolis

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