Carol Mack sued Stryker in 2010, alleging negligence and product liability claims based on a designed defect and failure to warn. Mack underwent shoulder surgery in 2002 and developed chondrolysis when the Stryker pain pump used in her procedure destroyed the cartilage in her shoulder.
The U.S. District Court for Minnesota dismissed the lawsuit in 2012, ruling that it was not widely known that using pain pumps in joints would destroy their cartilage until 2005 or 2007, well after Mack’s surgery. Mack appealed to the U.S. Court of Appeals for the 8th District, arguing that the lower court erred in not taking into account expert witness testimony.
The 8th Circuit disagreed, upholding the Minnesota court’s decision in a split decision issued May 12.
"In fact, the medical community was unaware of any link between pain pumps and chondrolysis until at least 2007," Judge Lavenski Smith wrote for the majority. "Consequently, we conclude that Stryker could not have foreseen the potential for articular cartilage damage as the result of the surgical implementation of its pain pump based on the medical community’s knowledge in 2002. Stryker, as a matter of law, had no duty to protect or warn Mack of the harm that Stryker’s pain pumps may inflict."
In a dissenting opinion, Judge Kermit Bye wrote that he believes "Mack is entitled to have a jury determine whether the use of pain pumps in articular joints presented a foreseeable risk of harm at the time of her August 2002 shoulder surgery," according to court documents.
"Given the inconsistent decisions reached on the issue of foreseeability by both reasonable judges and reasonable jurors, I fail to see how we can conclude Mack’s claim on foreseeability is anything but a ‘close case,’" Bye wrote. "Minnesota law thus allows her to have a jury decide her claim. I therefore disagree with our decision to affirm the grant of summary judgment in favor of Stryker. I would reverse the district court and remand this ‘close case’ for a jury trial."