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Donovan v. Bioject3/13/2001
Appellant Lynn Donovan suffered an injury to her arm after receiving a flu shot that was administered using a Biojector. She and her husband, appellant Terrance Donovan, brought this action against (1) the Biojector's manufacturer and distributor, respondent Bioject, Inc., alleging claims for products liability and failure to warn, and (2) the nurse who administered the injection and her employer, respondents Jane Doe and Metropolitan Visiting Nurse Association (MVNA), alleging negligence and negligent nondisclosure claims. On appeal from a summary judgment, appellants argue that the district court erred in (1) concluding that the evidence was insufficient to prove causation; (2) finding their expert affidavit did not meet the requirements of Minn. Stat. ยง 145.682 (2000); and (3) denying their motion for reconsideration. We affirm.
FACTS
A nurse employed by MVNA administered a flu shot in Lynn Donovan's left arm using a Biojector 2000. The Biojector is a needle-free injection system that uses compressed carbon dioxide gas and sterile, disposable medication syringes to deliver medication into body tissue. Immediately after receiving the injection, Lynn Donovan felt a burning and stabbing pain in her left arm. The following morning, her left arm began swelling, and a painful, golf -ball-sized lump developed on it. Lynn Donovan testified that she still has a lump about the size of a quarter in her left arm, and appellants presented evidence that she continues to experience a burning sensation with some movements, reduced sensation, and significant pain when she raises her left arm more than 90 degrees. Appellants allege that the injury to Lynn Donovan's arm resulted from the flu injection going too deep into a nerve.
Appellants submitted an affidavit by Joanne Gladden, an associate nursing professor at the University of Mary in Bismark, North Dakota, opining that the nurse who administered the flu shot to Lynn Donovan violated the standard of care for performing inoculations by failing to give Lynn Donovan sufficient information about the Biojector 2000. Specifically, Gladden stated that when using a new inoculation method, a nurse should give a patient the choice between the new method and the time-tested needle injection method and should obtain the patient's informed consent before using the new inoculation method. Gladden also stated that Lynn Donovan should have been provided with follow-up information, including a direct telephone number to those in charge of giving the inoculation so that immediate problems could be addressed.
DECISION
On appeal from summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). This court must view the evidence in the light most favorable to the nonmoving party. Id. But summary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial. Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994) (citation omitted).
1. To establish a product liability claim based on strict liability,
an injured party must show (1) the product was in a defective condition, unreasonably dangerous to the user, (2) the defect existed when the product left the manufacturer's control, and (3) causation. Westbrock v. Marshalltown Mfg. Co., 473 N.W.2d 352, 356 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).
Appellants have not identified a
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