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Jury Returns Defense Verdict in Bellwether MDL Medical Device Case

California
Feb 06, 2013

McKenna v. Breg, Inc.

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

First bellwether in California infusion pump JCCP decided after 3 1/2 week trial

 

Breg, Inc. received a decisive win on February 6, 2013 in the first bellwether case in the California infusion pump JCCP to go to trial.  There are currently hundreds of infusion pump cases in the California JCCP including defendants I Flow, DJO, Stryker and Breg.  The case involved plaintiffs Scott and Melissa McKenna of Highlands Ranch, Colorado.  The McKennas sued Breg, a medical device company headquartered in Vista, California, alleging that Breg was negligent and strictly liable for providing inadequate warnings with its Pain Care 3000 infusion pump.  Plaintiffs claimed Mr. McKenna developed chondrolysis in his left shoulder, a condition marked by the rapid and complete dissolution of the articular cartilage in a joint, following a July 12, 2002 surgery in which Breg's Pain Care 3000 was prescribed for his post-operative treatment of pain.  Plaintiffs claimed Breg should have warned Mr. McKenna's surgeon of a risk of chondrolysis from use of the pump.  Breg alleged that Plaintiff did not have chondrolysis, but rather secondary osteoarthritis, which was not caused by the anesthetic infused into Mr. McKenna's shoulder joint via Breg's pain pump.  Breg also claimed that the warnings accompanying the pump at the time of Plaintiff's surgery were sound, based on the prevailing medicine and science at the time the infusion pump was sold. 

 

After a  3 1/2 week jury trial in the Superior Court for the State of California, County of Orange, a twelve-person jury returned a complete defense verdict in favor of Breg on both of plaintiffs' claims.  The jury found Breg did not negligently fail to warn, and that its Pain Care 3000 pump was not defective due to inadequate warnings.  The Honorable Gail A. Andler presided over the case, and Judge Andler is the presiding judge over the entirety of the JCCP infusion pump cases.

 

Breg, Inc. divested the infusion pump product line in 2008.  Breg, Inc. was acquired by Water Street Healthcare Partners in May 2012 from Orthofix International NV.  As part of that transaction, Orthofix agreed to indemnify Water Street from certain liabilities, including liabilities related to the former Orthofix infusion pump product line.

 

Plaintiffs were represented by Thomas Powers of Williams, Love, O'Leary & Powers, P.C. in Beaverton, Oregon, Matthew Munson of Beasley Allen Crow Methvin, Portis & Miles, P.C. in Montgomery, Alabama, Laura Kalur of Kalur Law in Lake Oswego, Oregon, and Jeffrey Milman and Robert Mosier of Hodes, Milman, Liebeck & Mosier, LLP in Irvine, California and Phoenix, Arizona.  Expert witnesses on behalf of Plaintiffs were Dr. Stephen Trippel, Dr. David Bailie, Dr. Peggy Pence, Maria Vargas, and Dr. Larry Stokes.

 

Breg was represented by Kim M. Schmid, Sandra Giannone Ezell, Barry J. Koopmann, and Molly J. Given of Bowman and Brooke LLP.  Expert witnesses on behalf of Breg were Dr. Jorge A. Ochoa, Dr. Damon H. Petty, and Dr. Thomas L. Hedge, Jr. 

 

 Read the full Law360 coverage.

Trial Team