T.B. v. Orthofix Inc.
MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 2/15/2017. (bg, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
) Case No. 14-cv-9623
) Judge John W. Darrah
MEMORANDUM OPINION AND ORDER
Plaintiff Timothy Bellas filed a Complaint against Defendant Orthofix, Inc.
(“Defendant”) and others, in the Circuit Court of Cook County. The Complaint was removed to
federal court. Defendant filed a Motion for Summary Judgment, which was granted in part and
denied in part. Defendant has now filed a Motion to Reconsider . For the reasons discussed
below, Defendant’s Motion to Reconsider  is granted in part and denied in part.
Plaintiff was born with a congenital defec,t and his right leg is approximately 3.5
centimeters shorter than his left leg. On March 22, 2010, Plaintiff underwent a right femur
osteotomy and placement of the Orthofix LRS fixator on his right leg. The Orthofix LRS is
capable of compressing or lengthening the bone, depending on how it is turned. Whether the
device should be adjusted in a clockwise or counter-clockwise fashion depends on how the
device is assembled by the physician when it is installed. Dr. Edward Abraham, who performed
the surgery, affixed a piece of tape to the Orthofix LRS with an arrow indicating the correct
direction for adjustments.
At a May 28, 2010 follow-up appointment, an x-ray revealed that Plaintiff’s femur had
shortened rather than lengthened. Dr. Abraham determined that the Orthofix LRS device had
been adjusted in the opposite direction of the one he had instructed. The tape showing the
correct direction had not fallen off, and the device was not defective. Plaintiff underwent a
remedial procedure on May 24, 2010, which involved adjusting the Orthofix LRS and
manipulation of the osteotomy site. Defendant distributes the device but was not involved with
the design, manufacture, or testing of the device.
“Motions for reconsideration serve a limited function: to correct manifest errors of law
or fact or to present newly discovered evidence.” Caisse Nationale de Credit Agricole v.
CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). A manifest error “is not demonstrated by
the disappointment of the losing party”; it is the “wholesale disregard, misapplication, or failure
to recognize controlling precedent.” Oto v. Metropolitan Life Ins., 224 F.3d 601, 606 (7th Cir.
2000) (internal quotation marks omitted).
Defendant argues that the Court misapprehended the scope of their Motion for Summary
Judgment and that it moved for summary judgment on all counts against it. The Complaint
alleges negligence (Count IV); strict liability for manufacturing defects (Count V), design
defects (Count VI), and failure to warn (Count VII); and breaches of express and implied
warranties (Counts VIII and IX), against Defendant based on the Orthofix LRS external fixator.
The Memorandum Opinion and Order granted summary judgment in favor of Defendant for
strict liability for manufacturing defects, Count V, and the failure to warn Count VII, but denied
summary judgment for strict liability for design, Count VI.
While Defendant asked for summary judgment on all claims, it did not provide any
specific argument for granting summary judgment on the negligence and warranty claims.
Defendant argued that Plaintiff could not make out a prima facie case that the Orthofix LRS had
a defective and unreasonably dangerous condition that existed at the time the product left the
manufacturer’s control and proximately caused the injuries. To the extent that the negligence
claim is based on allegations of a manufacturing defect, as stated in the Memorandum Opinion
and Order, Plaintiff has not presented any competent evidence that the Orthofix LRS unit had a
manufacturing defect. To the extent that the negligence claim is based on a failure to warn, as
stated in the Memorandum Opinion and Order, Plaintiff has presented no facts to show that the
manufacturer of the Orthofix LRS device failed to warn Dr. Abraham of any risks associated
with the device or that Dr. Abraham failed to inform Plaintiff of any risks. However, to the
extent that the negligence claim is based on manufacturing defects or a failure to warn, summary
judgment is granted as to Count IV.
Defendant still fails to address the implied and express warranty counts. See Little v.
Cox’s Supermarkets, 71 F.3d 637, 641 (7th Cir.1995) (“[A court] is not required to scour the
party’s various submissions to piece together appropriate arguments. A court need not make the
lawyer’s case”). However, to the extent that a breach of express or implied warranty claim is
based on manufacturing defects or a failure to warn, summary judgment is granted as to Counts
VIII and IX.
Defendant also argues that the Court erred in considering the report and resume of
Plaintiff’s expert, Dr. Charles A. Rawlings, when ruling on the motion for summary judgment.
Defendant’s argument is based on a portion of the Federal Rule of Civil Procedure 56 that is no
longer included in the rule. At one time, Federal Rule of Civil Procedure 56(e) stated, in part:
Supporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.
Sworn or certified copies of all papers or parts thereof referred to in an affidavit
shall be attached thereto or served therewith.
See Howmedica Osteonics Corp. v. Tranquil Prospects, Ltd., 482 F. Supp. 2d 1045, 1057 (N.D.
Ind. 2007), aff’d, 260 F. App’x 297 (Fed. Cir. 2008). That language was removed in the 2010
Amendments to the rule. 1 The current version of the rule has similar but not identical language:
“An affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
Under the current rule, “[a] party may object that the material cited to support or dispute
a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P.
56(c)(2) (emphasis added). “The evidence need not be admissible in form, but must be
admissible in content.” Wheatley v. Factory Card & Party Outlet, 826 F.3d 412, 420 (7th Cir.
2016). Further, “courts have wide discretion in deciding whether to admit expert testimony as
part of summary judgment.” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704-05 (7th Cir.
2009). Defendant does not argue that the facts in Rawlings’ expert report or resume would not
be admissible. Additionally, Plaintiff’s expert has since submitted an affidavit for his resume
“The requirement that a sworn or certified copy of a paper referred to in an affidavit or
declaration be attached to the affidavit or declaration is omitted as unnecessary given the
requirement in subdivision (c)(1)(A) that a statement or dispute of fact be supported by materials
in the record.” Fed. R. Civ. P. 56 2010 Amendment advisory committee’s note.
and report. (Dkt. 97, Exh. B.) Defendant has not shown that Rawlings’ report and resume
cannot be presented in a form that would be admissible in evidence.
Defendant’s Motion to Reconsider  is granted in part and denied in part. Defendant’s
Motion is granted to the extent that Plaintiff’s negligence claim, breach of implied warranty
claim, and breach of express warranty claim, are based on manufacturing defects or a failure to
warn. Defendant’s Motion is denied in that the Court properly considered Rawlings’ resume and
February 15, 2017
JOHN W. DARRAH
United States District Court Judge
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