Moore et al v. Wright Medical Technology, Inc.

Filing 101

ORDER granting in part and denying in part 49 Motion for Summary Judgment. Plaintiffs design defect, failure-to-warn, negligence, and loss-of-consortium claims shall proceed to trial. Signed by Judge J. Randal Hall on 03/31/2016. (thb)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN

FOR THE

DISTRICT OF GEORGIA

AUGUSTA DIVISION

OTIS

MOORE

and

DOROTHY

*

R.

MOORE,
*

Plaintiffs,

*

*

v.

l:14-cv-62
*

WRIGHT MEDICAL TECHNOLOGY,
INC.,

*

*

Defendant.

*

0

Plaintiffs

Defendant

arising

Otis

Wright

out

of

E

R

and Dorothy Moore

Medical

the

D

R

filed this

Technology,

failure

of

the

Inc.

case

seeking

against

damages

PROFEMUR® titanium modular

long neck component of Otis Moore's hip implant, which Defendant

designed

and

manufactured.

Plaintiffs'

Complaint

advanced

numerous legal claims against Defendant, and Defendant now seeks

summary

judgment

in

its

favor

on

the

following

claims

theories:

•

Product Liability based on Design Defect;

•

Product Liability based on Manufacturing Defect;

•

Product Liability based on Failure to Warn;

•

Negligence Per Se;

•

Loss of Consortium;

•

Punitive Damages

and

and

(Def.'s Mot. Summ.
DENIES

IN PART

J.,

49. )1

Doc.

Defendant's motion.

I.

BACKGROUND

Wright Medical Technology,
PROFEMUR®

Hip

System,

which

PROFEMUR® titanium modular
line of modular necks,

neck

connects

to

the

introduced in 2002

Inc.

long neck.

which has

stem

referred to
2002

and

sheet

as

a

The

Ex.

that

at

8-9.)

reported pre-2002.
modular neck model,

in

April

information

the
a

market.

PROFEMUR® model

Defendant,

in Europe

advertising the

since

however,

1985.

A

was
had

2003

PROFEMUR® modular neck

the 50,000 modular necks implanted between 1985 and

claimed

10

part

PROFEMUR® neck is

The

"[n]one

of

the

necks

clinical failure since their inception."

95,

component

a modular connection where the

component.

for the U.S.

follow-up

is the manufacturer of the

includes

produced modular neck components
clinical

The Court GRANTS IN PART and

and

May

However,

Later,

with

a

(Pis.'

dozen

respect

has

to

experienced

the

Br.,

Doc.

fractures

neck

Opp.

a

were

2002

PROFEMUR®

Defendant received notice of neck fractures

2005.

concerning

Later

significant

still,
numbers

Defendant
of

received

fractures,

which

Defendant warned surgeons about in subsequent letters.

1 Plaintiffs' Complaint also alleges a negligence claim that is
distinct from their negligence per se claim.
Defendant has not moved
for summary judgment on the negligence claim. Additionally, Defendant
filed three Daubert motions to exclude Plaintiffs'
which the Court addresses in a separate order.

experts'

testimony,

The 2002 PROFEMUR® Hip System includes Instructions For Use
("IFU")

that

detail

some

of

the

associated with the hip implant.
"factors,"

among

others,

that

considerations

and

risks

The IFU included the following

"can be

critical

to

the

eventual

success of the procedure":
Patient's Weight.
An overweight
or
obese
patient
can
produce
high
loads
on
the
prosthesis which can lead to failure of the
prosthesis
Patient's occupation or activity.
If the
patient
is
involved in
an
occupation or
activity,
which
includes
substantial
walking, running, lifting, or muscle strain,
the

resultant

forces

the

fixation,

the

can

cause

device,

or

failure

both.

of

The

prosthesis will not restore function to the
level expected with normal healthy bone, and
the
patient
should
not
have
unrealistic
functional expectations.

(Pis.' Opp.

Br.,

"absolute

contraindications,"

"obesity

where

weight."

In
Scott

Doc.

95, Ex.

obesity

is

1 at 1-2.)

The IFU also includes

which

defined

as

specifically

three

times

mention

normal

body

(Id. at 2-3.)

September

Corpe,

an

2005,

Plaintiff

orthopedic

surgeon

the Medical College of Georgia,

residency

in

1981,

modularity

hip

Dr.

replacement

Otis
and

Moore

met

Associate

with

Dr.

R.

Professor

at

regarding hip pain.

Corpe

has

systems.

been
He

Since his

experienced

understood

that

with
hip

replacement systems and their component parts include the risk
of failures,

material

at each modular

interactions,

junction.

Dr.

and corrosion and

fretting

Corpe also authored

surgical

guides for Defendant,

including one for the PROFEMUR® hip stem

that he implanted in Otis Moore.
had no information that

In 2005,

Defendant's

however,

PROFEMUR® hip

Dr.

Corpe

system had a

greater risk of mechanical failure by fracture of its component
parts than other hip systems, or that it was not appropriate for
heavier patients or those who wanted to engage in high levels of
activity.
During the course of his consultation with Otis Moore,

Dr.

Corpe determined that Moore suffered from end-stage degenerative

joint disease

was

so

in his

great

right hip.

that

he

wanted

Moore

his

indicated that the pain

hip

replaced

and

further

informed Dr.

Corpe that he caddied for professional golfers and

that

golf

a

full

bag

can weigh as

Corpe cautioned Moore that the

much

as

sixty pounds.

Dr.

bag's additional weight and the

amount of walking associated with his job could adversely affect
the success of

his

a hip replacement.

Nevertheless,

Dr.

Corpe

agreed to perform the surgery.

In

his

"muscular

week
72.01

initial

in

his

before

the

inches

Defendant's

consultation,

build"

operation,

tall.

IFU,

and

which

"not

Moore

Moore

did

defined

Dr.

Corpe

obese."

weighed
not

described Moore

(Doc.

230.8

qualify

obesity

as

49

as

three

as

at

31.)

A

lbs.

and

was

obese

times

under

normal

body weight.

On November 15, 2005, Dr. Corpe performed a right hip total

arthroplasty,

implanting

the

PROFEMUR®

total

hip

system,

including
years

the

later,

relevant
on

titanium modular

March

13,

2012,

Otis

long

neck.

six

artificial

Moore's

Over

hip

failed, causing severe pain.

Moore sought a consultation with

Dr.

Corpe

the

Dr.

Corpe performed a revision surgery to

who

determined

that

modular

neck

had

fractured.

remove the

fractured

neck component.

At the time of Moore's initial implant surgery on November
15,

2005,

only two

had fractured.
agreed

to

Dr.

implant

generally,

was

Defendant's

other

late 2008,

necks,

of

Defendant's

2002

PROFEMUR® modular

necks

Corpe was unaware of these fractures when he
the

modular

unaware

of

modular

neck

the

in

Otis

fractures

neck models

that

between

after he did learn of fractures

Moore

1985

and,

more

occurred
and

2002.

in
In

in PROFEMUR® modular

Dr. Corpe switched to using models with smaller heads and

non-metal

bearings

before

discontinuing

using

the

PROFEMUR®

modular neck entirely around 2010.

II.

Summary

genuine

56(a).

the

judgment

dispute

entitled

to

as

is

to

judgment

appropriate

any

as

STANDARD

material

a matter

of

only

fact

if

and

law."

"there

the

Fed.

is

no

movant

is

R.

Civ.

P.

Facts are "material" if they could affect the outcome of

suit

under

Liberty Lobby,

view

SUMMARY JUDGMENT

the

facts

the
Inc.,

in

governing
477 U.S.

the

light

substantive
242,

248

most

favorable

law.

(1986).

to

Anderson

v.

The Court must

the

non-moving

party,

Matsushita

U.S. 574,

in [its]
1428,

587

Elec.

(1986),

favor."

1437

Indus.

Co.

v.

Zenith Radio

Corp.,

475

and must draw "all justifiable inferences

U.S. v.

(11th Cir.

Four Parcels of Real Prop.,

1991)

(en banc)

941 F.2d

(internal punctuation and

citations omitted).

The
Court,

moving

by

motion.

How

1115

reference
Celotex

to

proof

party

carry
at

this

two

the

initial

materials
v.

Cir.

burden

1993) .

on

Catrett,

depends

Fitzpatrick v.

proof at trial,
of

to

Corp.

trial.

(11th

has

When

file,
477

on

City

the

burden
the

U.S.

who

of

showing

basis

317,

bears

of Atlanta,

non-movant

has

for

323

the
2

the

(1986).

burden
F.3d

the

the

of

1112,

burden

of

the movant may carry the initial burden in one

ways:

by

negating

an

essential

element

of

the

non-

movant's case or by showing that there is no evidence to prove a
fact necessary to the non-movant's

case.

Clark,

(11th Cir.

Inc.,

Adickes

477

v.

U.S.

response
movant

929

S.H.

317).

in

F.2d
Kress

opposition,
its

issues

of

judgment

&

606-08

Co.,

398

it

must

144

(1970)

first

consider

initial burden of showing that

material

fact and

as a matter of law.

F.3d 248, 254

U.S.

1991)

Coats

&

(explaining
and

Celotex,

Before the Court can evaluate the non-movant's

has met

genuine

604,

See Clark v.

(11th Cir. 1997)

that

Jones v.

it

City

(per curiam).

is

whether
there

the

are no

entitled

of Columbus,

to
120

A mere conclusory

statement that the non-movant cannot meet the burden at trial is
insufficient.

Clark,

929 F.2d at 608.

If—and only if—the movant carries

its

initial burden,

non-movant may avoid summary judgment only by

that

there

is

indeed a material

summary judgment."

proof at trial,

Id.

the

issue

of

the

"demonstrat[ing]

fact

that

precludes

When the non-movant bears the burden of

non-movant must tailor its

method by which the movant

carried its

response to the

initial burden.

If the

movant presents evidence affirmatively negating a material fact,
the

non-movant

withstand

fact

a

"must

directed

sought

to be

the movant

shows

non-movant

must

respond
verdict

with

evidence

motion

negated."

at

trial

Fitzpatrick,

2

sufficient
on

the

F.3d at

either

show

that

the

record

material

1116.

an absence of evidence on a material

fact,

contains

to

If
the

evidence

that was "overlooked or ignored" by the movant or "come forward
with

additional

verdict

motion

deficiency."
burden by

evidence

at

Id.

relying

sufficient

trial

at
on

based

1117.
the

to

on

The

withstand

the

alleged

non-movant

pleadings

or

by

cannot

repeating

a

directed

evidentiary

carry

conclusory

allegations contained in the complaint.

See Morris v. Ross,

F.2d

Rather,

1032,

1033-34

(11th

Cir.

1981).

the

its

663

non-movant

must respond with affidavits or as otherwise provided by Federal
Rule

of Civil

Procedure

In

action,

notice

this

of

56.

the

Clerk

Defendant's motion

for

of

the

Court

gave

Plaintiffs

summary judgment and informed

them of the summary judgment rules, the right to file affidavits
or

other

materials

in

opposition,

and

the

consequences

of

default.

(Doc.

Wainwright,
therefore,

52.)

The notice

772 F.2d 822,

825

requirements

(11th Cir.

of Griffith v.

1985)

(per curiam),

are satisfied and the motion is ripe for review.
III.

ANALYSIS

Plaintiff Otis Moore asserts the followings three causes of

action:

(1)

strict

product

negligence per se.

Otis

Moore

liability:
warn.

alleges
design

(Id.

damages

(Compl.,

at

liability;
Doc.

three

defect,

39-41.)

(2)

1 at 39-43.)

different

manufacturing

Further still,

section that requests

negligence;

(3)

In more detail,

theories
defect,

of

and

product

failure

to

the Complaint includes a

Plaintiff Dorothy Moore's

loss of

consortium damages and punitive damages against Defendant.

(Id.

at

into

44.)

Defendant's

individual

claims

motion

breaks

relief

and

for

Plaintiffs'

requests

requests

summary

judgment

on

each.

A. Design Defect

Defendant
defect

theory

seeks

judgment

on

the

grounds

that,

[Defendant's]

Daubert

motions

then

judgment

Otis

regarding

summary

(Def.'s

that

Mot.

on

summary

Summ.

J.

is
at

also
5).

proving a design defect

expert

testimony.

1833-TWT,

2011 WL

See

Meade

4402539,

at

"should

Court

in this

Ford

*2

(N.D.

8

as

to

agrees

case

v.

the

all

claims."

with

Defendant

Co.,
2011)

grant

experts,

requires the

Motor
Ga.

design

Court

Plaintiffs'

warranted
The

Moore's

No.

use

of

l:09-cv-

("Because the

alleged design defect ... is not one that can be understood by
the reasonable
quotations

Daubert

juror,

omitted)).

motions,

favorable
Moore's

to

the

testimony is required."

Having

Court

Plaintiffs,

design defect

therefore,

expert

denied

finds

the

the

that,

expert

theory of product

bulk

in

of

the

(internal

Defendant's

most

supports

evidence

light

Otis

liability.

The Court,

DENIES Defendant's motion with respect to the design

defect theory.

B. Manufacturing Defect

Defendant's motion for summary judgment seeks the dismissal
of

Otis

Moore's

(Def.'s Mot.

manufacturing

Summ. J. at 12.)

defect

theory

of

liability.

Under Georgia law,

[t]o establish defendant's strict liability,
plaintiffs must prove that defendant is the
manufacturer
of
the
property,
that
the
property when sold by the manufacturer was
not merchantable and reasonably suited to
the use intended (i.e., defective), and that
its condition when sold was the proximate

cause of the injury sustained.

Chicago

Hardware

&

877-78 (Ga. Ct. App.

Fixture
1999)

Co.

v.

Letterman,

510

S.E.2d

875,

(footnote omitted).

In their response brief,

Plaintiffs admit that Defendant's

"manufacturing records indicate that at the time of manufacture
the

subject

device

surface-finish

15.)
defect

conformed

specifications."

Nevertheless,
claim

to

should

[Defendant's]
(Pis.'

Opp.

Plaintiffs

assert

that

proceed

because

Dr.

dimensional
Br.,

the

Doc.

95

and
at

manufacturing

Corpe

supposedly

testified

that

design

a manufacturing

or

that Dr.

factual

252
of

the

device's

failure

defect.

Corpe's testimony is

dispute.

(Doc.

85

was

In

caused

reply,

by

either

Defendant

a

argues

insufficient to create a material

at

3

(citing Anderson,

577

U.S.

at

(M[t]he mere existence of a scintilla of evidence in support
the

plaintiff's

position

will

be

insufficient"

to

avoid

summary judgment))).

The
Dr.

Court

Corpe's

manufacturing

agrees

with

off-hand

defects

Defendant.

remark

in

Plaintiffs'

about

Defendant's

the

reliance

possibility

products

cannot

on
of

sustain

Otis Moore's manufacturing defect theory of liability because no
reasonable

juror

could

conclude

based

solely on

that

testimony

that Moore's hip implant was defectively manufactured.2
put,

Dr.

Corpe's

testimony

is

not

"evidence

Simply

sufficient

to

2 A review of the testimony in question makes clear that Dr.
Corpe is speaking about the possibility of manufacturing defects in
hip implants generally and not with respect to Otis Moore's implant.
The full exchange in deposition was as follows:
Q: With respect to implant challenges,
Total
Joint
Arthroplasty
implants
realistically
guaranteed
for
five

"whether
can
be
years,

guaranteed for five years, let alone 20 years, is
also questionable.
Catastrophic implant failures
can mechanically occur in the absence of a design
or manufacturing flaw.
A:
I would have to say that I agree with
everything in that until the last statement,
because

I

don't

understand that

last

statement.

Q: Okay.
A:

There

has

to

be

some

reason

that

it

failed,

but
to
say
that
it's
not
a design
or
a
manufacturing flaw, how else does it fail then?

10

withstand

a

directed

verdict

fact sought to be

negated."

Court,

GRANTS

motion

therefore,

at

trial

Fitzpatrick,

on

the

2 F.3d at

summary judgment with

material

1116.

respect

The

to

Otis

Moore's manufacturing defect theory.

C. Failure

to Warn

Under Georgia law,
on

a

failure-to-warn

defendant
and

to prove a product-liability claim based

had a

the

duty to warn,

breach

injury."

theory,

was

the

Ga.

1999)

"when

the

manufacturer

(citations

S.N.C.,

ways:

by

failing

or

"must

the
duty

of

46 F. Supp.

omitted).

knows

to

cause

show

breached that

the defendant

danger arising from product use."

two

plaintiff

proximate

Wheat v. Sofamor,

(N.D.

a

A

duty

reasonably

Id.

the

plaintiff's

2d 1351,
to

1362-62

warn

should

arises

know

of

a

Breach may be proved in

adequately communicate

the

warning

to

the ultimate user or by failing to provide an adequate warning
of

the

1213,

product's
1219,

doctrine,
of

the

because

potential

(11th Cir.

[Defendant]
risks

Dr.

manufacturer

of

and

1999).

was not

the

Corpe

risks.

was

"Under the

ultimate

v.

Ford,

190

titanium

learned
consumer;

F.3d

learned intermediary

required to directly warn

[PROFEMUR®

a

Watkins

modular

intermediary
[Defendant]

[Moore]

long

neck]

between
could

the
have

adequately communicated the warning by only warning Dr.

Corpe."

Mims

2012

v.

1681810,

Wright
at *4

Med.

Tech. , Inc.,

(N.D. Ga.

2012).

11

No.

1: ll-cv-213-TWT,

WL

Defendant

seeks

summary

judgment

two

a matter of law because Defendant warned of the risk

risks,

activity,

namely

implant,

that

and

Dr.

PROFEMUR®

Corpe

its

for

adequate as

and

that

claim

First,

weight

contends

this

reasons.

of

Defendant

on

knew

modular

warnings

of

necks,

the

relevant

like

could fail and that weight and activity,

were

any

hip

in particular,

is a cause of failure.

Second, Defendant argues that Plaintiffs

cannot

because

prove

causation

PROFEMUR® necks

after he

Plaintiffs'

that

failure-to-warn

used in
IFU

PROFEMUR®

IFU's

only

definition
(Pis.'

"obesity"
Br.,

Ex.

definition,

Dr.

affect

the

success

weight

did not

and

that

he

initial

or

meet
the

neck.

Corpe's

1

In

three
at

the

a

hip

Doc.

67

own

included

body

a

weight.

with

Otis

contained

that

Moore's

in

the

IFU

population"

for

the

And

Dr.

102-05.)

indicated he was

(Outpatient Note,

Elsewhere,

be

knew weight can

implant,

at

not

Defendant's

Consistent

though he

warn

Defendant's

normal

patient

evaluation of Moore

Ex. 4 at 49.)

implant

allegation

should

weight

contraindication

Depo.,

an

particular,

times

"appropriate

(Corpe

to

inadequate to

begin,

2-3.)

of

on

necks

regarding

failure

in build" and "not obese."

J.,

To

Corpe testified that,

was

modular

as

rests

long

lbs.

claim.

contraindication

Opp.

continued

Corpe was

titanium modular

Plaintiffs'

of

theory

Dr.

someone weighing 230.8

supports

Corpe

learned of fractures.

that the information given to

him

Dr.

"muscular

Def.'s Mot.

Summ.

the IFU mentions that a patient's
12

weight
this

"can

as

and

to

failure

of

the

prosthesis,"

a "major consideration when the patient

small

Pis.'

lead

sized

Opp.

Br.,

prosthesis
Ex.

1 at

must

1.)

be

Dr.

used."

Corpe

but
is

(Hip

describes

small boned
System

IFU,

further testified that

Defendant never warned that "heavier weight" or "high levels of

activities" produced an
or

that

increased risk of

failure

in

a patient

a modular neck possessed an increased risk compared to

fixed necks.

(Corpe Depo.

The inadequacy of

Plaintiffs'
orthopedic

expert
surgeon

"had any notice

at 102-05.)

Defendant's warning is

reports.
expert,

of

prior

Dr.

gave

the

also supported by

Sonny

Bal,

opinion

that

failures by factures

of

Plaintiffs'
if

Defendant

any model

of

these modular necks ... an orthopedic surgeon would reasonably

expect" that Defendant would correct the problem or give a clear

warning if a correction was not possible.

at 25.)

And the

engineering

expert

expert,

report of Mari

states,

warning pages supplied by

among

other

(Bal Report,

S. Truman,

opinions,

Doc.

51

Plaintiffs'

that

[Defendant] for this device

"[t]he

(in 2003)

were insufficient concerning weight and/or activity restrictions

to

prevent

implant

(Truman Report,

Doc.

evidence,

including

testimony,

and

overload,
91,

Ex.

the

Plaintiffs'

failure

2 at 66.)

IFU,

Dr.

experts,

and

patient

In short, Plaintiffs'
Corpe's

raises

a

evaluation

factual

over whether Defendant adequately warned Dr. Corpe.

13

injury."

and

dispute

With
no

respect

evidence

Corpe's

to

Defendant

an

that

causation,
additional

warning

conduct.

testimony

that

Defendant

Dr.

Corpe

different warnings."
argues

Defendant,

Dr.

conduct

fractures.

after

would

that there

have

have

acted

Summ.

J.
to

"obtained no

differently

at

is

changed Dr.

Plaintiffs

continued

Corpe

11.)

with

Moreover,

implant

PROFEMUR®

after he learned that his own patients

(Id.)

In

of

fractures

learning

would

that

(Def.'s Mot.

modular necks until 2010,
suffered

notes

argues

Defendant's

view,

demonstrates

Dr.

Corpe's

that

he

would

have implanted the PROFEMUR® titanium modular long neck in Moore
even with an adequate warning.

Defendant's

selective

reading

of

Dr.

Corpe's

does not provide a full picture of his

response to

fractures

Read

in

PROFEMUR® modular

favorable to

favor,
neck

Dr.

Plaintiffs,

necks.

in

the

testimony

learning of
light

and with all inferences drawn in their

Corpe testified that once he learned about PROFEMUR®

failures

he

discontinued

his

use

of

the

titanium

long necks and then all of Defendant's modular necks.
counsel

asked

fractures,
2010,

Dr.

he

and

"large

experienced

Corpe

continued

Dr.

crucially, Dr.

with

most

Corpe

whether,
to

use

even

after

PROFEMUR®

confirmed

that

learning

modular

was

the

modular

Defense
of

necks

some
until

case.

But,

Corpe clarified that he stopped using the models

heads

any

against

fractured

metal

bearings,"

necks

"that

were

and

not

he

had

not

articulated

against a metal liner ... or a short neck," though he admitted
14

the

decision

to

stop

was

not

fracture in his patients.

not

aware

of

immediately

any

stop

legal

made

(Doc.

immediately

67,

Ex.

all

1 at 69.)

that

authority

implanting

requires

learned

heads

of

fractures

against

Moore.

metal

Even if

Dr.

he

because

he

adequately

not

have

evidence

stopped

implanted
raises

a

of

the

the

the

the

for

device's

device

in

Corpe

neck

to

models

models

"with

implanted

large

in

Otis

PROFEMUR® modular neck

judgment

on

beck model

risks,

Moore.

disputed material

summary

model

long

Defendant's warnings and causation,

motion

Dr.

a jury could draw the inference that

implanting

apprised

using

Corpe's cessation of

implants was not immediate,

first

His testimony was that once

stopped

bearings,"

the

The Court is

PROFEMUR® modular

for Plaintiffs to prove causation.

he

after

fact

he

once

he

therefore

Because
regarding

was

would

Plaintiffs'
adequacy

of

the Court DENIES Defendant's

Otis

Moore's

failure-to-warn

theory.

D. Negligence Per Se Claim

Defendant's motion also seeks summary judgment in its favor

with respect to
Mot.

Summ.

abandon

GRANTS
favor

J. at

that

Otis Moore's negligence per se claim.
12-13.)

claim.

summary judgment
of

In response,

(Doc.

95

at

on Moore's

Defendant.

15

(Def.'s

Otis Moore has chosen to

16.)

The

Court

therefore

negligence per se claim in

E. Dorothy Moore's Loss-of-Consortium Claim
Because

Moore's

the

Court

claims,

derivative

477

F.

Court

Supp.

nature

DENIES

dismissed

Dorothy

loss-of-consortium

(discussing derivative
the

not

Plaintiff

Ports Authority,

Thus,

has

all

of

Otis

may

Moore

Plaintiff

maintain

her

claim.

See

2d 1272,

1276-77

of

the

Defendant's

Pattee

v.

(S.D.

Georgia

Ga.

2007)

loss-of-consortium claim).

motion

for

summary

judgment

on Dorothy Moore's loss-of-consortium claim.

F. Punitive Damages Claim

Under Georgia
where

"defendant's

fraud,

wantonness,

would

raise

law,

Plaintiffs may recover punitive

actions

showed

oppression,

the

willful

presumption

of

conscious

§ 51-12-5.1(b).

to

by

this

Further,

in

typically
with

conduct

a

not

at

*5

435

949

F.Supp.

(N.D.

Stone

843

evidence

Man

206

showing

an

v. Moseley,

"punitive

manufacturer

No.

culpable

of

has

But,

Inc.

General

if

punitive

then

are

complied
2012

Motors

Corp.,

present

"nothing

damages."

WL

v. Green,

Plaintiffs

behavior,"

447 S.E.2d 302, 311

16

to

Id.

damages

1: ll-cv-213-TWT,

Welch v.

1996)).

award

evidence.

(citing Stone Man,

1993);

Ga.

indifference

convincing

the

Mims,

2012)

(Ga.

(N.D.

precludes

Motors Corp.

Ga.

malice,

Plaintiffs are required

case,

where

standards."

S.E.2d 205,

"other

and

product-liability

regulatory

1681810,

clear

appropriate

misconduct,

or that entire want of care which

consequences." O.C.G.A.

prove

damages

in

General

(Ga. Ct. App.

1994)

abrogated on other grounds by Webster v. Boyett,
(Ga.

1998).

Defendant

argues

that

Plaintiff

malice,

Plaintiff,

and,

further,

PROFEMUR® modular

As
should

an

that

matter,

ruling

because

wantonness,
the

FDA

has

evidence
"willful

oppression"

cleared

the

to

sale

harm

of

the

neck.

initial

defer

judgment

fraud,

no

state of

that Defendant acted with the required mental

misconduct,

496 S.E.2d 459

on

Plaintiffs

the

whether

punitive

punitive

argue

damages

damages

that
claim

can

be

the
at

Court
summary

proven

is

a

question "best left for the Court to make when it hears and sees
all

of

the

trial."

evidence

(Pis.'

that

Opp.

will

Br.

be

at

submitted

17.)

But,

in

this

under

case

Georgia

at

law,

punitive damages claims may be decided at summary judgment "when
a

plaintiff

fails

defendant's

to

Pizza,

No.

765,

LLC,

Jan.
769

establish

conduct

indifferent

Ga.

to

14,

the

consequences

.

.

any

legal

the

misconduct."

(Doc.

allegation

is

that

claimed to

have

95

at

Defendant

never

.

fact

or

that

a

consciously

."

Puling

v.

Domino's

2015 WL

3407602,

at

*5

Powertel,

Inc.,

551

(N.D.

S.E.2d

2001).

referencing

generally

citing

of

willful

2015) (citing Taylor v.
App.

question

either

1:13-CV-01570-LMM,

(Ga. Ct.

Without

was

a

authority,

Plaintiffs

"evidence
16.)

published

At

of

materials

Plaintiffs'

in

which

fractures

it

since

1985, even though Defendant knew those statements were false.
17

by

[Defendant's]

bottom,

experienced modular neck

respond

As

discussed

Plaintiffs,

theory.

the

above,

evidence

However,

in

the

light

supports

Plaintiffs

a

have

most

viable

failed

favorable

failure-to-warn

to

point

to

evidence that Defendant did so with "willful misconduct,
fraud,

wantonness,

would

raise

oppression,

the

consequences."
cleared

Defendant's

1681810,

at *5

§

any

malice,

or that entire want of care which

presumption

O.C.G.A.

to

of

conscious

51-12-5.1(b) .

product

for

Additionally,

sale.

(dismissing plaintiffs'

indifference

See

to

FDA

2012

Mims,

the

WL

punitive damages claim on

similar evidence as presented in this case).

Given

Defendant's

Plaintiffs'

failure to

misconduct,

the

Court

compliance
point to
GRANTS

with

federal

evidence of
Defendant's

regulations

willful
motion

and

and wanton
for

summary

and DENIES

IN PART

judgment on Plaintiffs' punitive damages claim.

IV.

As

discussed,

Defendant's

defect,

motion

the

CONCLUSION

Court

for

failure-to-warn,

GRANTS

summary

IN PART

judgment.

negligence,

and

Plaintiffs

design

loss-of-consortium

claims shall proceed to trial.

ORDER ENTERED at Augusta, Georgia, this ^$/

day of March,

2016.

HONORABLE J./ RANDAL HALL

UNITED STATES DISTRICT JUDGE
JTHERN

18

DISTRICT

OF GEORGIA