United States District Court, D. Connecticut
RULING GRANTING DEFENDANTS' MOTIONS FOR SUMMARY
Jeffrey Alker Meyer, United States District Judge.
Shakeema Gill uses an inhaler for her asthma. One day while
using the inhaler she breathed in a thumbtack that had
somehow become lodged inside her inhaler. She has filed this
product liability lawsuit against both the manufacturer of
the inhaler (defendant Teva Respiratory, LLC) and the
retailer (defendant CVS Pharmacy, Inc.). Because no genuine
issue of fact remains to show that the thumbtack could have
entered plaintiff's inhaler at any time that it was
within the possession or control of either of the defendants,
I will grant defendants' motions for summary judgment.
January 28, 2014, plaintiff purchased a ProAir HFA inhaler
for her asthma from a CVS pharmacy in Ansonia, Connecticut.
The inhaler was assembled and packaged by Teva Respiratory,
LLC, in Ireland.
to plaintiff's deposition, she put the new inhaler into
the glove compartment of her car. About one week later, on
February 6, 2014, she retrieved the inhaler from the glove
compartment, at which time it was still in its original
packaging and had not been opened or used. She removed the
cap and shook the inhaler and then tried to spray it into her
mouth. She felt that medication had not entered into her
lungs, so she shook and sprayed the inhaler a couple of
times. On the final spray, she aspirated what turned out to
be a thumbtack that had been inside the inhaler. Several days
later, plaintiff sought medical treatment at the Griffin
Hospital, and a surgeon at Yale New Haven Hospital eventually
removed the thumbtack from plaintiff's lungs.
defendants do not dispute that plaintiff aspirated a
thumbtack from within her inhaler, both defendants dispute
that the thumbtack could have been introduced into the
inhaler while it was under their possession or control. Teva
has introduced evidence about its manufacturing and
inspection process to preclude any inference that it could
have allowed the thumbtack to enter the inhaler. According to
Teva's properly supported statement of material facts,
“The manufacturing, quality control, and quality
assurance processes and procedures for the production of
ProAir HFA inhalers in 2013 were such that a push pin like
the one inhaled by Ms. Gill could not have been in the
mouthpiece of (or any other part of) a ProAir HFA inhaler,
including a product in lot DAA69A, at the time it left Teva
Respiratory's control.” Doc. #45 at 2.
CVS in turn relies on plaintiff's admission that the
inhaler was still in its original packaging just before she
used it, a contention that is inconsistent with any tampering
by CVS with the inhaler during the time that it was in
CVS's control. For her part, plaintiff did not conduct
any discovery, and she has neither disputed defendants'
evidence nor even submitted a statement of material facts as
required under the Court's local rules. Accordingly, the
Court deems the factual statements as set forth in
defendants' local rule statements to be true.
See D. Conn. L. Civ. R. 56(a)(1).
defendants' evidence that negates their responsibility
for the thumbtack having entered the inhaler while in their
possession or control, defendants also point to evidence that
quite devastatingly contradicts plaintiff's own account
of what happened before she breathed in the thumbtack.
Several notes in the medical records recount plaintiff's
statements to medical personnel that the inhaler had been in
her purse (not her glove compartment), that the cap had
fallen off, and that her children had put the thumbtack
inside the inhaler. For example, the medical records notes
from Griffin Hospital state in part that “4 days ago
while using inhaler p[atien]t thinks she aspirated
‘something' which had gotten into her inhaler
mouthpiece [illegible] the cap fell off in her purse.”
Doc. #45-7 at 2. Similarly, the notes from Yale New Haven
Hospital (where plaintiff later had the thumbtack removed)
state that plaintiff “aspirated pushpin when using
inhaler from purse.” Id. at 4. The surgeon
“advised [plaintiff] to keep inhaler separate from
other belong[ing]s.” Id. at 7. A later
follow-up note from Griffin Hospital recites plaintiff's
statement that “her children had put the thumbtack in
her albuterol inh[aler] and she didn't see it before she
used her inhaler.” Id. at 3. When plaintiff
was deposed in connection with this lawsuit, she had no
explanation for these statements as reported in her medical
also introduced evidence that every inhaler that left its
plant had a mechanical counter that was set to a level of 200
doses and that counted down each time that the inhaler was
used. At plaintiff's deposition, she was asked to produce
the inhaler. She did so and testified that she had not used
the inhaler again since the day that she had aspirated the
thumbtack. Yet the inhaler as produced by plaintiff showed a
count of 166, reflecting that the inhaler had been used 34
times. When asked whether this meant that she had used the
inhaler on occasions before she had breathed in the
thumbtack, plaintiff responded: “You would have to ask
somebody else because I never used it before. So-and I
didn't look at the number beforehand, so that is not
something I did before this.” Doc. #28-6 at 7.
Q. So you would have no idea how the number went down from
200 to 166?
A. Same thing I don't know how the thumbtack got in
Q. I am not sure I understand what you mean by that answer.
A. I don't know how the thumbtack got in there. So the
same reason it got in there would have been the same ...