Griffin, M.D. v. Synthes USA Sales, LLC

Filing 24

ORDER denying 10 Motion for Summary Judgment, and this case remains set for a jury trial to begin on May 13, 2013. Signed by Honorable P. K. Holmes, III on March 8, 2013. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
FRANK M. GRIFFIN, M.D.
v.

PLAINTIFF
Case No. 2:11-CV-02157 PKH

SYNTHES USA SALES, LLC

DEFENDANT
ORDER

Currently before the Court are Defendant Synthes USA Sales, LLC’s (“Synthes”) Motion for
Summary Judgment (Doc. 10), and supporting documents, Plaintiff Frank M. Griffin, M.D.’s
(“Griffin”) Response (Doc. 15), and supporting documents, and Synthes’s Reply (Doc. 22). Synthes
moves for summary judgment on all claims in the Complaint (Doc. 1) arguing that there are no
genuine issues of material fact, and that it is entitled to judgment as a matter of law on the grounds
that Griffin’s claims are barred by the applicable statute of limitations.
In determining whether summary judgment is appropriate, the burden is placed on the
moving party to establish both the absence of a genuine dispute of material fact and that it is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986); Nat’l. Bank of Commerce of El Dorado, Ark. v. Dow
Chem. Co., 165 F.3d 602 (8th Cir. 1999). The Court must review the facts in a light most favorable
to the party opposing a motion for summary judgment and give that party the benefit of any
inferences that logically can be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211,
1212-13 (8th Cir. 1998) (citing Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983)).
This case is a product liability suit in which Griffin alleges that Griffin’s damages were
caused by a defective Synthes LISS distal femur plate (“LISS plate”) that was implanted in Griffin’s
right femur. The surgery to implant the LISS plate occurred on July 26, 2004. Griffin commenced
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his product liability action against Synthes in Arkansas state court on September 28, 2009. In
addition to other defenses, Synthes pled the affirmative defense of the statute of limitations under
the Arkansas Products Liability Act. The statute provides in part that, “[a]ll product liability actions
shall be commenced within three (3) years after the date on which the death, injury or damage
complained of occurs.” Ark. Code Ann. § 16-16-103. Synthes contends that Griffin knew of the
relationship between the LISS plate and his injury before September 28, 2006 and that, therefore,
his product liability claims are barred by the statute of limitations.
In Martin v. Arthur, the Arkansas Supreme Court adopted the discovery rule in product
liability cases holding that the statute of limitations “does not commence running until the plaintiff
knew or, by the exercise of reasonable diligence, should have discovered the causal connection
between the product and the injuries suffered.” 339 Ark. 149, 159 (1999). The trier of fact must
determine, based on the evidence, when the plaintiff was first made aware of the nature of the harm
caused by the product, or alternatively, when he should have discovered the casual connection. Id.
“[T]he full extent of the harm is not required; indeed, the manifestation of the nature of the harm
done to [the plaintiff] may be slight. Id. “The difficulty, then, is determining what level of
manifestation is sufficient to start the limitations period and then distinguishing that from the the full
extent of the injury.” Mulligan v. Lederle Labs., Div. of American Cyanamid Co., 786 F.2d 859, 863
(8th Cir. 1986) (internal quotation omitted).1 The key consideration is at what point the true nature
of the injury manifests itself. Id. at 864. To know the nature of an injury is not necessarily to know
its full extent, but rather the “concept of the nature of a plaintiff’s condition could be described either

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While Mulligan was decided by the Eighth Circuit before Martin, it is nevertheless
instructive of the law in Arkansas. The Arkansas Supreme Court expressly “adopt[ed] the reasoning
of the Eighth Circuit in Mulligan and agree with its analysis of the Spickes case” in adopting the
discovery rule in Martin. 339 Ark. at 159.
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as his or her awareness of the condition . . . or by the notion of informed diagnosis.” Id. (internal
quotation omitted).
Griffin contends that he was unaware of the nature of his injury until the LISS plate had been
removed in 2008. Affidavit (Doc. 15-1 ¶5). The Court has reviewed the various depositions and
materials related to Griffin’s diagnosis and treatment, along with Griffin’s affidavit. The Court
believes that the proof is not sufficiently clear to establish at what time Griffin knew or should have
discovered the causal connection between the product and the injuries suffered or when he became
aware of the true nature of any injuries caused. Synthes has not met its burden of showing an
absence of a dispute of material fact and is not, therefore, entitled to judgment as a matter of law.
IT IS THEREFORE ORDERED that Synthes’s Motion for Summary Judgment (Doc. 10)
is DENIED. This case remains set for jury trial to begin on May 13, 2013.
IT IS SO ORDERED this 8th day of March, 2013.

s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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