A plaintiff’s claims that a pain pump destroyed his shoulder cartilage are not time-barred where a jury could find that he acted reasonably in discovering the cause of the injury, a U.S. district court held.
In December 2003, Brandon Rauen underwent arthroscopic surgery on his left shoulder. After the procedure, the surgeon, Charles Beck, inserted a Stryker pain pump into the shoulder. Rauen began suffering stiffness and pain in the joint, and in mid-November 2004, Beck diagnosed chondrolysis—destruction of the cartilage. Beck told Rauen he did not know the cause. Rauen consulted several other surgeons and a physical therapist, but they also told him they did not know what had caused his condition. Rauen saw Beck twice more—once at the end of November and once in December, but Beck did not mention the pain pump as a possible cause.
It was not until July 2008, when Rauen saw a local news broadcast about other shoulder surgery patients with similar symptoms, that he suspected a possible connection between the pain pump and his chondrolysis.
In November 2009, Rauen sued Stryker, alleging that the pain pump had caused his injury. Stryker moved for summary judgment, arguing that Rauen’s claims were barred by Utah’s two-year limitations statute because he had filed suit more than two years after he discovered, or should have discovered, the injury and its cause. The defense argued that Rauen could have discovered the potential cause of his injury as early as October 2007 by contacting a doctor or lawyer or doing an Internet search, but that he failed to exercise due diligence. Rauen countered that he was unaware of a causal connection until July 2008, despite his exercise of due diligence.
Denying Stryker’s motion, the court noted that once the discovery rule is invoked, it is for a jury to determine when the plaintiff discovered or reasonably should have discovered the injury and its cause.
Reviewing the evidence, the court acknowledged that after the mid-November visit at which Beck told Rauen he did not know the cause of his condition, Rauen did not ask Beck again about the possible cause during his follow-up visits. The court said, however, that a jury could find it was reasonable for Rauen to assume that Beck would have informed him of the cause if he had discovered it after the mid-November visit. Moreover, the court noted, Rauen offered evidence that Beck did not begin advising patients of the possible cause of their chondrolysis until the spring of 2005—after Rauen had already stopped consulting Beck—and that Beck had admitted that he had not informed all former patients.
Finally, Rauen offered evidence that another surgeon he consulted in January 2005 also did not know the cause of his condition. When none of his health care providers could offer an explanation by January 2006, Rauen testified, he became frustrated and declined to see other surgeons for several years because they were not providing answers and he felt he had done all he could do.
Based on this evidence, the court concluded, a jury could find that Rauen had been reasonably diligent in attempting to find out the cause of his chondrolysis, rendering summary judgment inappropriate.
Citation: Rauen v. Stryker Corp., 2012 WL 5876557 (D. Utah Nov. 21, 2012).
Plaintiff counsel: AAJ members Charles H. Thronson, James T. Blanch, John P. Ball Jr., Richard E. Mrazik, Sanna-Rae Taylor, Michael A. Worel, and Jessica A. Andrew, all of Salt Lake City.