McCorvey v. Baxter Healthcare Corp.

United States Court of Appeals for the Eleventh Circuit · 2002 · Torts

TortsStrict Products LiabilityExpert EvidenceSummary Judgmentstrict liabilityproduct defectmalfunction during normal operationCassisi

Facts

After prostate surgery, a Bard 30 cc catheter was inserted into McCorvey's bladder. Although Bard's instructions advised filling the catheter with no more than 36 cc of sterile water, McCorvey's doctor tested and then inflated it inside McCorvey with 50 cc of saline solution, and medical experts testified that such filling was customary and standard urological practice. About six hours later, the balloon portion of the catheter spontaneously erupted and fragmented inside McCorvey, and an additional fragment was discovered in his prostate about a year and a half later. McCorvey sued the manufacturer and distributor under Florida strict liability and offered two medical expert affidavits and one engineering expert affidavit to oppose summary judgment.

Issue

Whether the district court properly excluded McCorvey's engineering expert affidavit under Daubert and Rule 702, and whether McCorvey was entitled under Florida law to a Cassisi inference of product defect sufficient to defeat summary judgment on his strict product liability claim. More specifically, the question was whether the catheter's fragmentation during what the record showed to be normal operation allowed an inference of defect without proof of a specific defect or negation of alternative causes.

Rule

Under Rule 702 and Daubert, the proponent of expert testimony must show by a preponderance of the evidence that the expert is qualified, that the methodology is sufficiently reliable, and that the testimony will assist the trier of fact. Under Florida strict product liability law, a plaintiff may receive a Cassisi inference that a product was defective at the time of sale and injury when the product malfunctions during normal operation; once those prerequisites are met, the plaintiff need not identify a specific defect or negate other possible causes in order to reach the jury.

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At a hospital in Tampa, Olivia Kent underwent a routine procedure requiring a drainage tube with an inflatable retention cuff. The manufacturer's insert said the cuff should be filled with no more than 20 mL, but two urologists submitted affidavits stating that physicians in standard practice regularly inflate that model to 30 mL when traction is needed and that the device almost never fails when used that way. Six hours after insertion, the cuff burst inside Olivia and fragments were removed from her bladder.

In Olivia's Florida strict liability suit against the manufacturer, which is the strongest argument against summary judgment?

Explanation. Under the majority opinion, Florida allows a Cassisi inference when the plaintiff shows both malfunction and that the malfunction occurred during normal operation. Normal operation may be shown by evidence that the challenged use was customary and standard in actual practice, even if it exceeded the manufacturer's written recommendation. Once those prerequisites are met, the plaintiff need not identify a specific defect or negate alternative causes to survive summary judgment. (Derived from McCorvey v. Baxter Healthcare Corp. (n.d.).)