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Griffin v. Lincare, Inc.

United States District Court, D. Vermont

July 19, 2016

JANE GRIFFIN, Plaintiff,
v.
LINCARE, INC., Defendant.

          ORDER ON DEFENDANT’S MOTIONS TO EXCLUDE EXPERT TESTIMONY AND FOR SUMMARY JUDGMENT (Docs. 23, 24)

          Hon. J. Garvan Murtha United States District Judge

         I. Introduction

         In this diversity action commenced in February 2015, Plaintiff Jane Griffin asserts strict liability and negligence claims against Defendant Lincare, Inc. (“Lincare”) alleging it is liable for frostbite burns to her foot caused by its oxygen system. (Doc. 1 (“Compl.”).) Lincare moves, under Federal Rules of Evidence 403 and 702, to exclude testimony of Plaintiff’s retained expert, David Dodge, regarding whether the Manufacturer’s Operating Instructions were adequate and verbal instructions given by Lincare’s service representative were in accordance with those instructions. (Doc. 23.) Lincare also moves under Federal Rule of Civil Procedure 56 for summary judgment arguing, incorporating its motion to exclude testimony, that Griffin has failed to present the necessary admissible expert testimony to meet her burdens of proof on causation and breach of duty. (Doc. 24.) Griffin opposes the motions[1] and Lincare filed replies. (Docs. 26, 37, 38, 42.) For the reasons discussed below, the Court grants the motion in limine and grants in part and denies in part the motion for summary judgment.

         II. Background[2]

         Griffin, a retired nurse, alleges she was injured in September 2012 when, while attempting to disconnect the portable unit from the oxygen reservoir tank, leaking oxygen caused severe frostbite burns to her right foot. (Compl. ¶¶ 8-12.) The complaint includes claims for strict product liability (Count I) and negligence (Count II). Id. ¶¶ 13-27. She seeks compensatory damages, interest, and costs. Id. at 5-6.

         Griffin relies on supplemental oxygen 24 hours per day to treat bilateral diaphragmatic paralysis disorder. She also has neuropathy (nerve damage) in her feet that causes tingling, burning, and numbness, and leaves her with no feeling in her toes and the ball of her foot. (Doc. 39 at 1.)

         Griffin had leased the Helios H300 Plus Portable and Reservoir, a liquid oxygen system, from Lincare since September 9, 2008. Lincare, a provider of oxygen, respiratory, and home infusion products and services, did not manufacture the system, which consists of a portable unit and a liquid reservoir unit. The portable unit is filled by pressing the bottom of the portable unit on top of the reservoir fill connector and opening the vent valve lever, allowing liquid oxygen to fill the portable unit. It takes less than a minute to fill the portable unit. When full, there is a sputtering noise followed by a release of white oxygen vapor. To release the portable unit, the user closes the vent valve lever and presses the reservoir release button.

         Griffin signed a Plan of Service Agreement with Lincare and an Oxygen Orientation Checklist acknowledging she received an explanation of all safety warnings contained in the Manufacturer’s Operating Manual and a copy of the manual. She concedes she did not read the operating manual. From September 9, 2008 to September 3, 2012, Griffin used the oxygen system without issue. Lincare refilled the reservoir with liquid oxygen every two weeks.

         On September 3, 2012, at 9:43 p.m., Griffin contacted Lincare’s after-hours call center because she experienced difficulty removing the portable unit from the reservoir. She informed the call center that oxygen was going all over. The call center contacted Lincare’s on-call Service Representative Layton Durkee who immediately returned Griffin’s call. Durkee provided instructions on how to remove the portable unit from the reservoir unit. Griffin asserts he told her to shake the portable unit back and forth to release it and he did not remain on the line while she did this. (Doc. 39 at 2.) Lincare asserts, without citation, Durkee remained on the phone until the unit was released and that he gave instructions in accordance with the operating manual. See Doc.25 ¶ 17. The Manufacturer’s Operating Manual (the “Manual”) states:

Note: If the units will not disengage easily, they may have become frozen. DO NOT USE FORCE. Simply allow a few minutes for the frozen parts to warm, then disengage the Portable when the ice has melted.

         The unit continued to emit oxygen vapor after the portable unit was removed from the reservoir. Griffin opened all her windows because the room had filled with vapor. (Doc. 39 at 2.)

         Griffin agrees the oxygen that came in contact with her foot was not liquid. Id. On the morning of September 4, 2012, Griffin discovered bleeding from the bottom of her right foot. (Doc. 25-1 at 13 (Griffin Dep. Tr. 91:1-10).) She immediately sought medical treatment and was diagnosed with frostbite and second degree burns. Due to her neuropathy, Griffin did not feel pain in connection with the injury. She asserts she was not exposed to any other source of extreme cold or heat that could have caused her injury from the evening of September 3 until the morning of September 4, 2012, when she noticed the bleeding. (Doc. 39 at 3.) She testified during her deposition that the cause of her injury was oxygen vapor emitted from the oxygen system.

         Lincare contends, relying on its expert, that the temperature of oxygen vapor is not low enough to freeze skin on contact and could not have caused Griffin’s injury. (Doc. 25 ¶ 26.) Griffin disputes this assertion (Doc. 39 at 3); Dr. Conway, who treated her injury, diagnosed her with a frostbite injury “caused by her exposure ...


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