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Musgrave v. Breg, Inc.

United States District Court for the Southern District of Ohio, Eastern Division

September 2, 2011, Filed

Case No. 2:09-cv-01029

Opinion

OPINION AND ORDER

This matter is before the Court on Defendant 1 Breg, Inc.'s ("Breg or Defendant") Motion for Summary Judgment (ECF No. 103), Plaintiffs' Memorandum in Opposition to Defendant's Motion for Summary Judgment (ECF No. 119), the Reply Memorandum in Support of Breg's Motion for Summary Judgment (ECF No. 133), Plaintiffs' Motion for Partial Summary Judgment (ECF No. 109), Breg's Response in Opposition to Plaintiffs' Motion for Summary Judgment (ECF No. 118), and Plaintiffs' Reply in Support of Plaintiffs' Motion for Partial Summary Judgment (ECF No. 134). For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant's motion and DENIES Plaintiffs' motion.

I.  [*3] Background

Plaintiff Kaid C. Musgrave was seventeen years old in 2003 when he injured his right shoulder during a football game. On November 4, 2003, Dr. Brad E. Brautigan performed arthroscopic surgery on Musgrave's shoulder at the Zanesville Surgery Center in Zanesville, Ohio. After the surgery, Dr. Brautigan prescribed and implanted the catheter of a Breg infusion pain pump to administer local anesthetic for post-operative pain control. Dr. Brautigan used a Breg PainCare 3200 and placed the catheter intra-articularly, i.e., inside the shoulder joint. Dr. Brautigan prescribed 0.5% Marcaine (an anesthetic known generically as bupivacaine) for use in the pump. The pain pump was removed two days later, on November 6, 2003.

Musgrave continued to experience problems with his right shoulder, and on December 17, 2004, underwent a second arthroscopic surgery. During this surgery, Dr. Brautigan observed osteoarthritic changes to the glenohumeral joint. Less than two years after using the Breg pain pump, Musgrave developed chondrolysis, which is the rapid loss of joint cartilage following some chemical, mechanical, infectious, immunological, or thermal insult. See Daniel J. Soloman, et al.,  [*4] Glenohumeral Chondrolysis After Arthroscopy: A Systematic Review of Potential Contributors and Causal Pathways, Arthroscopy 25:11:1329 (2009). The result of this cartilage loss is a joint that no longer has a smooth gliding surface to cover the ends of the bone, so the joint rubs bone against bone causing pain and stiffness. Due to this condition, Musgrave underwent a total right shoulder arthroplasty. He has a complete loss of cartilage in his shoulder and degenerative bone loss.

Musgrave and his parents (together "Plaintiffs") filed this action on November 13, 2009. Plaintiffs claim that the post-operative continuous injection of anesthetics directly into Musgrave's shoulder joint caused chondrolysis, leaving him with serious and permanent cartilage damage. 2 Plaintiffs' complaint contains claims for relief against Defendant for strict products liability, fraud, and punitive damages.

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2011 U.S. Dist. LEXIS 99491 *

KAID C. MUSGRAVE, et al., Plaintiffs, v. BREG, INC. AND LMA, NORTH AMERICA, Inc., et al., Defendants.

Subsequent History: Motion granted by, in part, Motion denied by, in part Musgrave v. Breg, Inc., 2011 U.S. Dist. LEXIS 110650 (S.D. Ohio, Sept. 28, 2011)

Reconsideration granted by, in part, Corrected by, in part Musgrave v. Breg, Inc., 2011 U.S. Dist. LEXIS 128101 (S.D. Ohio, Nov. 4, 2011)

CORE TERMS

pumps, pain, surgery, orthopedic, intra-articular, chondrolysis, manufacturer, retroactive, anesthetic, infusion, punitive, warranty, foreseeable, shoulder, genuine, non-economic, abrogated, cartilage, conform, intra-articularly, compensatory, memorandum, prevail, deposition, causation, Partial