Fajardo v. Boston Scientific Corp.

Summary

The court affirmed summary judgment for the referring gynecologist and his practice because the physician performing the mesh implantation bore the duty to obtain informed consent, and the referring physician could not have misrepresented a product he did not know would be used. The court also affirmed the refusal to give a reasonable-alternative-design instruction because the plaintiffs did not present sufficient expert-supported evidence that a specific alternative would have reduced or avoided the plaintiff’s harm. Justice Ecker, concurring in part and dissenting in part, would have held that the evidence was sufficient to submit the alternative-design theory to the jury.