Academic journal article Defense Counsel Journal
Products Liability: Plaintiff Gains Inference Product Was Defective
In a 2-1 decision, a panel of the 11th Circuit held that a Florida man was entitled to a legal inference in his products liability action that a catheter that burst inside his bladder was defective. Reviewing a summary judgment applying Florida law and ruling in favor of the catheter manufacturer, C.R. Bard Inc., and the distributor, Baxter Healthcare Corp., the court's majority also ruled that the trial court properly excluded an engineering expert's affidavit because it did not have the necessary indicia of reliability. McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253 (2002).
Charles McCorvey's products liability action alleged that a catheter that was inserted into his bladder in February 1995 during prostate surgery and later erupted was defective. To test the balloon device of the catheter before insertion, the manufacturer's instructions stated that it should be filled with no more than 36 cc of saline solution. McCorvey's doctor tested the balloon with 50 cc of saline solution, and once it was inserted into McCorvey's bladder, it was inflated again with the same measure of solution.
Attempting to defeat Bard's and Baxter's motion for summary judgment, McCorvey submitted expert affidavits of an engineer and two doctors, all of whom maintained that the catheter was defectively designed or manufactured and/or was not safe for its intended purpose. The medical expert affidavits established that, despite the manufacturer's instructions, it had become the standard urological practice to fill 30 cc-capacity catheters to the 50 cc level.
Striking the engineering affidavit as lacking reliability, the district court granted summary judgment in favor of Bard and Baxter. It also found that McCorvey was not entitled to a legal inference of product defect as recognized in Florida by Cassisi v. Maytag Co., 396 So.2d 1140 (Fla.App. 1981).
For the majority of the 11th circuit panel, Judge Kravitch, applying Florida law, agreed with the district court's conclusion that McCorvey's engineering expert's affidavit was not sufficiently reliable under Federal Rule of Evidence 702 and Daubert v. …