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Fertik v. Stevenson

United States District Court, D. Massachusetts

May 13, 2016

WILLIAM FERTIK, individually and as personal representative and successor of the ESTATE of GRETA FERTIK, Plaintiff,


Patti B. Saris Chief United States District Judge


William and Greta Fertik[1] filed this action against two physicians and the manufacturer of a surgical guide wire, Abbott Vascular, Inc. (Abbott), after the guide wire broke and was left inside William Fertik’s heart during cardiac surgery. The plaintiff’s sole claim against Abbott is that the Hi-Torque Balanced Heavyweight cardiac guide wire failed due to Abbott’s negligence in manufacturing the wire. Abbott has moved for summary judgment claiming that the plaintiff has failed to provide reliable evidence that the wire broke as a result of Abbott’s negligent manufacturing.[2] The plaintiff responds that the doctrine of res ipsa loquitur defeats summary judgment. Neither party contends that the physicians were negligent in the placement of the wire. After hearing, this Court DENIES the defendant’s motion for summary judgment (Docket No. 173).


The facts are taken from the record and are undisputed unless otherwise noted. On May 6, 2009, the plaintiff, William Fertik, underwent a radiofrequency cardiac ablation procedure[3] at Brigham & Women’s Hospital in Boston to treat his cardiac rhythm irregularities and periodic atrial fibrillation.[4] Dr. William Stevenson, who had previously performed more than 3, 000 similar procedures without incident, and Dr. Melanie Maytin, a fellow at the hospital, performed the procedure.

During the cardiac ablation procedure, Dr. Stevenson removed the guide wire from its sterile packaging and observed no damage or evidence of any tampering. He then threaded the wire through Mr. Fertik’s vasculature up to his heart. The wire served as a guide for a needle that the physicians used to puncture the internal wall of the heart and gain access to the left atrium. This procedure is known as a trans-septal puncture.

During the surgery, unnoticed by either physician, a portion of the guide wire broke off inside the plaintiff’s body. The physicians experienced nothing unusual during the procedure and neither saw nor felt the wire break. After the surgery, the plaintiff was discharged from the hospital. Later he demonstrated symptoms of a stroke and hospital personnel discovered that the wire had been left coiled up inside his heart.

The plaintiff then returned to the hospital and, on May 10, 2009, Dr. Eisenhauer, a non-party, removed the wire remnant. Dr. Eisenhauer, who had performed over 15, 000 procedures similar to the cardiac ablation procedure, had experienced guide wire breakage fewer than six times. Each time that the wire broke, he felt it break and immediately realized something had gone wrong. After the procedure, it is disputed whether Dr. Eisenhauer gave the wire remnant directly to the hospital’s pathology department or to Dr. Stevenson, but the remnant ultimately ended up in the possession of the hospital’s pathology department for testing. After testing, through no fault of either Abbott or Mr. Fertik, the wire was mistakenly discarded.


I. Summary Judgment Standard

Faced with a summary judgment motion, the Court must assess all facts in the record, and all reasonable inferences drawn from the facts, in favor of the non-moving party. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). A summary judgment motion succeeds “only where ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Showtime Entm’t, LLC v. Town of Mendon, 769 F.3d 61, 69 (1st Cir. 2014) (quoting Fed.R.Civ.P. 56(a)). Genuine disputes arise when the evidence would allow “a reasonable jury [to] return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A genuine issue of material fact must be built on a solid foundation-a foundation constructed from materials of evidentiary quality.” Perry, 782 F.3d at 78 (internal quotation marks omitted).

II. The Doctrine of Res Ipsa Loquitur

A plaintiff in a product liability case must prove at least two elements: (1) the defendant produced or sold a defective product and (2) the product caused the plaintiff’s injury. See Smith v. Ariens Co., 377 N.E.2d 954, 958 (Mass. 1978). A manufacturing defect exists when a product “deviates in its construction or quality from specifications or planned output in a manner that renders it unreasonably dangerous.” Brown v. Husky Injection Molding Sys., Inc., 751 F.Supp.2d 298, 300-01 (D. Mass. 2010) (internal quotation marks omitted). In manufacturing defect cases, “a particular product rather than a line of products, is alleged to be defective because of negligence in the manufacturing process.” Ariens, 377 N.E.2d at 958.

Here, the plaintiff is pressing a manufacturing defect claim caused by Abbott’s negligence under the doctrine of res ipsa loquitur. There is no present dispute over the cause of the plaintiff’s injury. The defendant contends that the doctrine of res ipsa loquitur is inapplicable because Abbott did not have exclusive control over the guide wire, the use of the guide wire was “off-label, ” and the guide wire-which is delicate-has a risk of breakage even in “on-label” uses without any physician or manufacturer negligence. The plaintiff responds that the doctrine of res ipsa loquitur saves his case even with the loss of the wire because there is no evidence of any damage to the wire prior to the surgery, and neither party claims the physicians were ...

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