Catheter producer rests defense in product liability, negligence trial

PHOENIX (CN) — Tensions rose on the last day of testimony in a bellwether trial representing more than 3,000 product liability claims against a global medical technology company.

An expert witness told a nine-person jury Wednesday that plaintiff Robert Cook’s sepsis-inducing port catheter infection occurred during the at-home de-accessing of his chemotherapy treatment, rather than during surgical implantation — shifting blame from the catheter manufacturer C.R. Bard.

“I think she inadvertently didn’t follow all the steps,” infection disease specialist Ban Allos said of Cook’s wife, Ann Potter, who disconnected Cook’s treatment two days after a Mayo Clinic surgeon implanted the port catheter in his chest. “I don’t believe she followed all the steps, or the infection wouldn’t have happened.”

Cook’s attorney Michael Sacchet protested. “You didn’t even watch the Mayo instructional video to be able to say that,” he said.

“I watched both videos,” Allos replied.

“Not before you wrote your report,” Sacchet retorted.

Cook sued in 2023, months after his port-catheter infection led to a six-day hospitalization that delayed his chemotherapy treatment for a month. Cook says Bard knew of the infection risk posed by its port catheters and failed both to warn physicians and patients of that risk and to develop a more infection-resistant material. His is the first of six bellwether trials in multidistrict litigation in the District of Arizona.

After first implanting his port catheter in Rochester, Minnesota, Mayo Clinic staff allowed Cook to de-access his port at home to save him the two-hour trip back to the hospital, which is common practice.

Megan Ogelsbee, a family friend and physician assistant, helped Potter during the de-access. In her deposition, she and Potter did everything correctly and recalled no instance in which the port or equipment could have become contaminated. Nurses at the Mayo Clinic later told her they didn’t suspect a mistake was made at home.

“You’re telling the jury that the de-access was the cause of the infection but you weren’t even there and the person who was there said she had no concerns,” Sacchet said in a federal courthouse in Phoenix. “Person who was there, no concerns. You not there, concerns.”

Bard attorney Richard North objected several times during cross-examination, accusing Sacchet of growing argumentative. U.S. District Judge David G. Campbell overruled the lion’s share, but reminded Sacchet that he can only ask questions, not offer commentary.

Allos protested most of his questions she couldn’t answer yes or no to, which he repeatedly demanded and pointed her to her deposition each time she refused.

“I think you’re picking things out of context and making me say things I did not say and giving me opinions I do not have,” she said.

Sacchet continued to pressure Allos.

“You have zero evidence that there was any breach?” he asked.

“There could be none,” Allos said, meaning nothing was reported in Cook’s medical records.

“Because you have none,” Sacchet said. “You have no evidence.”

Outside the presence of the jury, Campbell, George W. Bush appointee, noted that convincing the jury the infection occurred at home doesn’t save Bard from liability if Bard doesn’t prove negligence on behalf of Potter or Oglesbee.

“So you agree that infections happen even when everyone follows the rules?” Sacchet had asked earlier.

“Yes, that’s true,” Allos answered.

Sacchet added there’s no way for Allos to know whether the doctor or nurses at the Mayo Clinic made a mistake while implanting the catheter.

“You agree even nurses frequently make mistakes, correct?” he asked.

“Everybody does,” Allos answered.

“Including the nurses who implanted Mr. Cook’s port?” he asked.

“Including nurses,” she answered.

Because of the experience and expertise of the doctor who implanted it, and a mere 0.05% infection rate when the Mayo Clinic implants port catheters, Allos said it was “exceedingly unlikely” that Cook’s catheter was infected at the time of implant.

Cook’s attorneys objected to the mention of Mayo’s infection rate since it had been excluded from testimony by the court, so Campbell ordered the jury to forget the testimony.

Chad Modra, vice president of quality management at Bard and the final witness the company called, told the jury that according to complaint reports, the infection rate in its port catheters is less than 1%. Throughout the three-week trial, plaintiffs have cited studies that suggest an infection rate as high as 14%.

Closing arguments are set for Thursday morning.

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