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Gill v. Teva Respiratory, LLC

United States District Court, D. Connecticut

December 27, 2017

TEVA RESPIRATORY, LLC, et al. Defendants.


          Jeffrey Alker Meyer, United States District Judge.

         Plaintiff 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.


         On 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.

         According 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.

         Although 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.

         Similarly, 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).

         Beyond 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 records.

         Teva 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 there.
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 ...

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