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Eisenmenger v. Ethicon3/24/1994
ers were described by the District Court in its sanction order as "incomplete and evasive." Ethicon objected to an interrogatory about whether it took the position that Dr. Mungas failed to take the necessary precautions in using the suture, on grounds that the term "necessary precautions" was undefined. Ethicon stated that it was "unable to respond" to interrogatories about whether it contended that Dr. Mungas improperly tied the suture or that any act or omission of Dr. Mungas or an employee of the hospital caused or contributed to Eisenmenger's stroke. Ethicon further stated that it was "unable to comment on the specifics of Dr. Mungas' handling of the suture and the role of that handling in explaining the suture failure."
In answer to an interrogatory asking it to set forth "each factor which you contend substantially contributed" to Eisenmenger's post-operative stroke, Ethicon responded:
Many factors may contribute including age, history, smoking, general physical condition, wound dehiscence, and post-operative complications among many other possible factors. Ethicon intends to examine these as well as all other possibilities and may, depending on the outcome, offer expert medical opinion on this subject.
Dr. Olcott's name was first disclosed as a potential expert witness who might be called at trial on August 30, 1991. On December 9, 1991, Ethicon and its attorney made the following discovery responses:
Interrogatory No. 1: Is it your contention that Defendant James E. Mungas caused or contributed to the injuries or damages allegedly suffered or sustained by the Plaintiff, as more fully described in her Complaint? If so, please set forth with particularity and in detail:
(a) each and every fact supporting this contention;
(b) the identity of any and all persons who could or would testify as to the truthfulness of this contention; and
(c) the identity of all writings, notes, letter, records, or any other document which could or would support the truthfulness of this contention.
RESPONSE TO INTERROGATORY NO. 1: (a) Based on its investigation of the postoperative dehiscence experienced by plaintiff following her surgery in October 1985, Ethicon contends that such dehiscence was not due to any inherent property of PROLENE[*] suture material or to Ethicon's manufacturing procedures or labeling information, but rather to inadvertent suture damage or mishandling during its use, the precise nature of which is unavoidably unknown to Ethicon, by one of the individuals present in the operating room at the time of surgery, or to the surgical technique employed by one of those same individuals. Ethicon exercised no control over the suture after it left Ethicon's facility. Ethicon was not present during the time the suture was received, stored and handled by personnel from MDMC prior to its use during the surgery in question. Ethicon was not present in the operating room either during the initial operative procedure or the arteriotomy repair, when the suture was handled by operating room personnel, including Dr. Mungas, on multiple occasions and came into contact with a variety of surgical instruments. Because the suture utilized in the initial closure of the arteriotomy was thrown away by Mr. Mungas, MDMC employees or other operating room personnel, Ethicon was deprived of the opportunity to examine this crucial piece of evidence, from which the cause of the dehiscence could be obtained. Moreover, because Dr. Mungas, MDMC employees or other operating room personnel did not keep track of the lot number from which the suture in question came, Ethicon was further deprived of the opportun
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