The plaintiffs brought a motion under Rule 32 of the Rules of Civil Procedure seeking approval for a protocol for destructive testing of a medical device (Stryker Trevo Stent Retriever) that fractured during a medical procedure, leaving a portion in the plaintiff Evelyn Logan's brain.
Both the plaintiffs and the defendant Stryker Canada Corp. agreed on the necessity of testing but disputed the specific method, scope, and costs.
The court found the destructive testing of the "Critical Portion" of the device to be necessary and useful for determining the cause of failure.
While the plaintiffs' proposed protocol was deemed too vague, the court adopted a modified version of Stryker's proposed protocol, balancing the need for testing with the potential prejudice to Stryker.
The court ordered the plaintiffs to bear the cost of the testing and an Exemplar Device, and established a phased testing approach, including preliminary testing on an Extra Wire and an Exemplar Device before proceeding with the Critical Portion, with provisions for Stryker to observe and object to the final method.
No costs were awarded due to divided success.
