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Click here for the full text of this decision FACTS:On Feb. 7, 2000, Dr. Curtis Mosier performed an exploratory laparoscopy on Dianne Meyer in an attempt to find the cause of her generalized abdominal pain. On Feb. 9, 2000, Mosier discovered that a loop of Meyer’s small bowel had herniated through the laparoscopy incision, lost its supply of oxygen and burst. That same day, Mosier performed a second laparoscopy on Meyer to repair the damage to her intestines by resectioning part of her small bowel. The resectioning involved removing a three-foot length of Meyer’s intestines and reconnecting the cut ends. Mosier performed the surgery with the assistance of a TLC-55 linear cutter designed, manufactured and marketed by Ethicon. A linear cutter is a surgical device that creates parallel lines of staples and cuts the tissue between the staple lines, all with one “firing” of the device. In this particular procedure, Mosier used the TLC-55 to staple and cut Meyer’s bowel on either side of the part to be removed. He then also used the TLC-55 to attach the remaining portion of the bowel together and create an “anastomosis” between the cut ends of the bowel by stapling, rather than suturing, them together and cutting an opening between them to restore the flow of bowel contents. Mosier testified that he tested the anastomosis to ensure that gas and fluid could pass through the opening without leaking out of Meyer’s bowel. Mosier made sure the staples were holding and that there was no leakage, and he thought that the anastomosis was working well. In the days following the surgery, Meyer’s condition first improved, then declined. By Feb. 17, 2000, enteric fluid, or bowel content, was leaking out of the laparoscopy incisions in Meyer’s abdomen. On Feb. 21, 2000, Meyer was transferred to another hospital, where Dr. George Shires, another surgeon, performed a third operation. Shires discovered that one of the staple lines from the Feb. 9, 2000, anastomosis had “dehisced,” or separated, allowing bowel contents to leak into Meyer’s abdomen and cause a serious infection. As a result of the dehiscence and infection, Meyer underwent several additional surgical procedures and a lengthy hospitalization. Meyer sued Mosier for medical negligence on Aug. 31, 2001. On March 11, 2002 � two years and 19 days after the Feb. 9, 2000 surgery � Meyer amended her petition and sued Ethicon for products liability, alleging design, manufacturing and marketing defects in the TLC-55. Meyer eventually settled with Mosier, dismissed other defendants and proceeded to trial against Ethicon. A jury found that the TLC-55 was defectively marketed and awarded $538,281.73 in damages to Meyer, and the trial court entered judgment accordingly. On appeal, Ethicon argued, among other things, that Meyer’s claim was barred by limitations and that Mosier’s testimony regarding his independent knowledge of the risks of using a linear cutter/stapler conclusively negated producing cause with regard to the TLC-55′s alleged marketing defect. HOLDING:Reversed and rendered. A marketing defect, the court stated, occurs when a defendant knows or should know of a potential risk of harm presented by the product but markets it without adequately warning of the danger or providing instructions for safe use. When a product’s user, the court stated, is aware of the possible risks involved with a product’s use but decides to use it anyway, the inadequacy of the product’s warning is not, as a matter of law, a producing cause of an injury resulting from such use. The court agreed with Ethicon’s argument that the evidence conclusively negated producing cause, because Mosier testified that he had independent knowledge of the risks of using the TLC-55 even if Ethicon failed to warn him of those risks. Mosier’s testimony, the court stated, established that he was aware of the risk of a total staple-line failure and complete dehiscence regardless of whether Ethicon failed to provide an adequate warning. Thus, the court held that Mosier’s independent knowledge of the risk identified by Meyer’s own expert conclusively negated causation. OPINION:Gardner, J.; Gardner, J. and William H. Brigham, S.J. (retired), sitting by assignment. DISSENT:Dauphinot, J. “Dr. Mosier’s testimony does not conclusively negate the producing cause element. Although Dr. Mosier testified that he was aware of the risks of using the TLC-55, his testimony clearly revealed that he was not aware of the full extent of the risks at the time of Ms. Meyer’s surgery.”

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