Freedman v. Medtronic, Inc.

Order, Supreme Court, New York County (William J. Davis, J.), entered May 18, 1990, which, upon reargument and renewal, modified an order of said court, entered February 23, 1990, to grant defendant’s motion for summary judgment to the extent of dismissing plaintiff’s cause of action for breach of warranty and otherwise deny such motion, affirmed, without costs. Appeal from the February 23, 1990 order of said court is dismissed as superseded by the appeal from the May 18, 1990 order, without costs. Plaintiff commenced this personal injury action on December 23, 1987 against defendant Medtronic, Inc. ("Medtronic”), the manufacturer of a heart pacemaker device. The complaint [500] alleges causes of action in breach of warranty, products liability and negligence. Defendant moved, pursuant to CPLR 3212, to dismiss the action as time-barred because the implant occurred more than four years prior to commencement of the action and the alleged malfunctioning, with resulting injury to plaintiff, occurred more than three years prior to commencement of the action. (UCC 2-725; CPLR 214; Martin v Edwards Labs., 60 NY2d 417, 427-428 [1983].) The IAS court initially dismissed all three causes of action but upon renewal and reconsideration, dismissed only the cause for breach of warranty. (UCC 2-725.) As to the causes for negligence and products liability, the IAS court concluded that the affidavit of plaintiffs medical expert, based upon his analysis of plaintiffs medical records, was sufficient to raise a material triable issue of fact as to when these causes of action accrued. We affirm. The affidavit of plaintiffs medical expert, submitted upon renewal, raised a genuine issue of fact as to the date of the injury-producing malfunction and was sufficient to preclude summary judgment. (Martin v Edwards Labs., supra.) On October 29, 1983, a Medtronic pacemaker system was surgically implanted into the then 49 year old plaintiff Emma Freedman ("Freedman”). The system included a programmable power pack (model 8420 pulse generator) and pacemaker catheter or lead wire (model 4002) running from the pulse generator to the heart. On March 14, 1984 plaintiff underwent surgery in an attempt to correct a sensing malfunction in the device. Sensing refers to the ability of the pacemaker system to determine if the heart is beating sufficiently on its own before sending an unnecessary electrical impulse to the heart to stimulate its beating. If the pacemaker does not sense properly, it will send electrical impulses to the heart and cause palpitations. Since the lead wire which caused the occasional non-sensing could not be removed or repositioned, it was medically determined that it would be better to leave plaintiff with a non-functioning lead wire. Plaintiff was again hospitalized, in September 1986, during which time the pulse generator power pack was replaced. The hospital records for September 25, 1986 indicate that after surgery, the unit was "pacing well” and "[g]ood capture” was achieved. Capture relates to the pacemaker’s ability to cause the heart to react to electrical stimulation. It refers to the heart reacting to the electrical signal emitted by the pacemaker. Plaintiff was again admitted to the hospital on May 25, [501] 1987, having suffered an acute myocardial infarction, and was again hospitalized, on December 22, 1987, for complete replacement of both the power pack and defective lead wire. On the motion for summary judgment defendant submitted portions of plaintiff’s deposition testimony and medical records, and the affidavit of a medical expert in support of its position that the malfunctioning of the lead wire, which caused a sensing problem, occurred as early as November 1, 1983, as evidenced by an electrocardiogram taken of plaintiff at that time. Defendant’s cardiologist affirmed that the lead caused injury to plaintiff as early as March 14, 1984 when she underwent a two hour operation in an attempt to correct the improper sensing problem. The cardiologist opined that the myocardial infarction suffered by plaintiff in 1987 bore no relationship whatsoever to the pacemaker system. On this appeal plaintiff does not challenge the IAS court’s dismissal of the breach of warranty cause. Plaintiff also agrees that under the rule enunciated in Martin v Edwards Labs. (60 NY2d 417, supra) and Lindsey v Robins Co. (60 NY2d 417), the three year statute of limitations with respect to the remaining causes begins to run with the injury-causing malfunction of the product. She contends, however, that the date of the injury-causing malfunction occurred in or about May or September of 1986 when the pacemaker first failed to adequately "capture” and not in 1984 when the pacemaker failed to adequately "sense.” According to plaintiff, it was at this time that it was discovered that the failure of the pacemaker to properly sense was the result of an insulated defect of the lead wire and it was further discovered that the pacemaker could no longer be reprogrammed to a higher output to avoid failure of capture. Thereafter, according to plaintiff, on May 25, 1987, she suffered an acute myocardial infarction resulting from the pacemaker’s failure to adequately capture. Citing the hospital discharge summary following her 1984 surgery, plaintiff argued that while the "occasional non-sensing” was diagnosed upon her March 1984 hospital admission, it produced no injury to her, since the pacemaker continued to capture adequately. She maintained that while the failure to "sense” caused her occasional discomfort and minor heart palpitations, symptoms which she had experienced even prior to the implant, the failure to capture resulted in heart failure and necessitated immediate replacement of the system. Plaintiff’s contention was supported by Dr. Nathaniel Shafer, a licensed physician with a speciality in cardiology, [502] who affirmed that based upon his review of plaintiff’s medical records, it was his opinion that the failure to "capture” was the injury-causing defect and that this first occurred in May of 1986. Accordingly, the parties’ submissions raised material questions of fact to be resolved upon a trial and the presentation of expert testimony. Concur — Ross, Ellerin and Smith, JJ.