Pusey v. BECTON DICKINSON AND CO.
794 F. Supp. 2d 551
E.D. Pa.2011Background
- Judith Pusey underwent a left breast expander inflation using a 60 mL syringe manufactured by BD; infection led to removal of the expander.
- BD recalled the 60 mL Luer-Lok syringes in 2007–2008 due to packaging/seal issues; the recall included the syringe used on Judith.
- Plaintiffs assert negligence, strict liability under §402A, breach of merchantability and fitness for a particular purpose, and Donald Pusey’s loss of consortium.
- Dr. Noone treated Judith in 2008 and later testified that infection timing could be linked to the recalled syringe, though his opinion was not based on his own recall knowledge.
- BD’s recall notice identified lots 5, 6, or 7 (and some 8) as potentially affected; the recall occurred after Judith’s infection.
- The court granted summary judgment to BD, dismissing all claims with prejudice; Donald’s loss of consortium was also dismissed as derivative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the syringe was defective for strict liability and warranty claims | Puseys argue syringe defect evidenced by recall and testing. | BD asserts no specific defect proven for the particular syringe used. | No genuine defect issue established for the specific syringe; summary judgment for BD on strict liability and warranties. |
| Admissibility of recall evidence and Dr. Noone's opinion | Recall evidence should be admissible to prove defect; Dr. Noone’s opinion admissible as expert reliance. | Rule 407 bars post-injury remedial evidence; Noone’s lay opinion lacks foundation. | Recall and Noone's opinion excluded as to admissibility for summary judgment; other investigation evidence may be admissible. |
| Causation linking the syringe to Judith’s infection | Syringe contamination caused infection based on recall and timing. | Plaintiffs lack admissible proof tying the syringe to infection; other causes exist. | No admissible evidence shows the specific syringe caused the injury; negligence claim dismissed. |
| Whether Donald’s loss of consortium survives | Derivative claim survives if primary claims prevail. | If primary claims are dismissed, consortium claim fails. | Dismissed as derivative, since primary claims were dismissed. |
Key Cases Cited
- Ocean Barge Trans. Co. v. Hess Oil V.I. Corp., 726 F.2d 121 (3d Cir. 1984) (defect can be shown by improper function absent abnormal use)
- Soufflas v. Zimmer, Inc., 474 F. Supp. 2d 737 (E.D. Pa. 2007) (negligence and strict liability distinctions in product liability)
- Phillips v. Cricket Lighters, 841 A.2d 1000 (Pa. 2003) (negligence vs. strict liability; defect concepts in PA law)
- Had ar v. AVCO Corp., 886 A.2d 225 (Pa. Super. 2005) (elements of products liability; defect at time of sale)
- Gumbs v. Int’l Harvester, Inc., 718 F.2d 88 (3d Cir. 1983) (implied warranties and defect concepts in product liability)
- Breidor v. Sears, Roebuck and Co., 722 F.2d 1134 (3d Cir. 1983) (malfunction theory and defect proof in products liability)
- Dansak v. Cameron Coca-Cola Bottling Co., Inc., 703 A.2d 489 (Pa. Super. Ct. 1997) (malfunction theory; not conjecture; defect evidence required)