PORT ORCHARD, Wash. - (Mealey's) A Washington state court jury on May 23 found that the maker of the da Vinci surgical robot did not fail to provide adequate warnings or training to a surgeon who used the device on a patient who died four years later, allegedly from complications from the surgery, the defendant said (Fred Taylor, et al. v. Intuitive Surgical Inc., No. 09-2-03136-5, Wash. Super., Kitsap Co.).
According to Intuitive Surgical Inc., the trial was the first of 26 product liability cases pending against it in federal and state courts. It says it has tolled the statutes of limitations with some plaintiff attorneys to evaluate cases before litigation begins.
The jury in Kitsap County Superior Court answered "no" to its first verdict form question: "Was Intuitive negligent in failing to exercise reasonable care in providing adequate warnings or instructions/training to Dr. [Scott] Bildsten?"
In a statement, Intuitive said it was pleased with the jury's verdict.
In 2008, Fred Taylor underwent prostate surgery in which a da Vinci surgical robot made by Intuitive was used by Scott Bildsten, D.O. In 2009, Taylor and his wife, Josette, sued Intuitive, alleging that the defendant inadequately trained Bildsten in the use of the device or failed to warn him about the device's risks.
Fred Taylor suffered medical complications and died four years after surgery. His wife represents his estate in the lawsuit.
Intuitive argued that it adequately warned the surgeon of the risks of the device and adequately trained him and that Fred Taylor's injuries were due to medical error.
Doctor, Patient Fault
In the unanswered questions on the verdict form, the jury was asked if the defendant's negligence was a cause of Fred Taylor's injury and death. It was also asked if Bildsten was negligent and if his negligence caused Fred Taylor's injury and death.
The jury would also have been asked to apportion fault among Intuitive, Bildsten and Fred Taylor.
The jury would also have been asked to award damages for Fred Taylor, Josette Taylor and the couple's three children.
Finally, the jury would have been asked if Intuitive engaged in malicious or oppressive conduct. The form did not call for an award of punitive damages.
Tolling, Evaluation Period
The trial began April 15. The jury began deliberations May 22.
In its April 19 Form 10-Q quarterly report filed with the U.S. Securities and Exchange Commission, Intuitive said it is a defendant in about 26 product liability lawsuits in federal and state courts by plaintiffs claiming injury or death from the da Vinci device. It said the plaintiffs allege product defect and inadequate training of surgeons.
The company also said plaintiffs allege that the company failed to adequately warn about the risks of the device.
Intuitive said it has entered into tolling agreements with some plaintiffs' counsel "[i]n an effort to provide an orderly process for evaluating claims before they result in costly litigation." In exchange for the company tolling the statutes of limitations, Intuitive said the plaintiffs agree that if they file a lawsuit, it will be filed in "certain agreed upon venues."
Resolve Without Litigation?
"The tolling agreements provide the parties and their legal counsel with additional time to evaluate the claims, to explore whether the claims have merit and whether they can be resolved without litigation," the company said.
In 2012, the Judicial Panel on Multidistrict Litigation denied a plaintiffs' motion to centralize federal lawsuits in a multidistrict litigation because there were too few cases and because individual issues would predominate.
Josette Taylor is represented by Richard H. Friedman of Freidman Rubin in Bremerton, Wash. Intuitive is represented by Allen J. Ruby and Jeffrey R. Johnson of Skadden, Arps, Slate, Meagher & Flom in Palo Alto, Calif.
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