Chatman v. Zimmer, Inc. et al
Filing
45
ORDER granting 34 Motion for Summary Judgment; finding as moot 43 Motion in Limine Signed by Honorable David C. Bramlette, III on 6/16/2016 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
BEATRICE CHATMAN
PLAINTIFF
VS.
CIVIL ACTION NO. 5:14-cv-102(DCB)(MTP)
ZIMMER, INC.,
ZIMMER HOLDINGS, INC.,
and ZIMMER ORTHOPAEDIC
SURGICAL PRODUCTS, INC.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the defendant’s1 motion for
summary judgment (docket entry 34), and on the defendant’s motion
in limine (docket entry 43).
Having carefully considered the
parties’ briefs and the applicable law, the Court finds as follows:
This is a personal injury/products liability case in which the
plaintiff,
Beatrice
Chatman
(“Chatman”),
claims
she
suffered
personal and economic injuries as a result of implantation of a
Zimmer NexGen Knee device known as “Zimmer NexGen System, Posterior
Stabilized Knee with Cement Components.”
Complaint, ¶ 9.
Chatman
alleges the device was implanted in her right knee on April 5,
2006, she began suffering injuries as a result of the implantation
in June of 2013, and she underwent revision surgery on June 24,
2013.
Complaint, ¶¶ 8-11.
She claims damages for injury to
herself, economic loss, medical expenses (past and future), costs
for rehabilitation, permanent disability and/or home healthcare.
1
The Court refers to the corporate defendants collectively
as “Zimmer” or “the defendant.”
Complaint, ¶ 15.
The defendant moves for summary judgment.
Rule 56(c) of the
Federal Rules of Civil Procedure authorizes summary judgment where
“the
pleadings,
depositions,
answers
to
interrogatories
and
admissions on file, together with affidavits, if any, show that
there is no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Celotex
If the moving party
carries its burden of showing that evidence in the record contains
insufficient proof concerning an essential element of the nonmoving
party’s claim, the burden shifts to the nonmoving party to present
evidence
showing
that
there
is
a
genuine
issue
for
trial.
Norwegian Bulk Transp. A/S v. International Marine, 520 F.3d 409,
412 (5th Cir. 2008).
The defendant moves for summary judgment on grounds that
Chatman has failed to provide an expert report or identify an
expert who can speak to the alleged defect and medical causation;
therefore, she has no evidence, expert or otherwise, to support
essential elements of her claims. Further, Zimmer contends that it
has served reports from its own experts, Dr. Thomas Baier and Dr.
Steven
Kurtz,
opining
that
Chatman’s
Zimmer
knee
replacement
components are not defective and that she has suffered no injury
caused by her knee replacement components.
Judgment, p. 1.
2
Motion for Summary
In response, the plaintiff alleges that she can prove her case
by relying on her own accounting of the events, records from her
treating physicians, and a recall notice from the Food and Drug
Administration (“FDA”). Response, p. 1. Specifically, she asserts
that an X-ray of her right knee in June of 2013 showed loosening of
the femoral component and loosening of the fibular component, which
had collapsed into the varus which gave the plaintiff a significant
amount of instability.
Response, p. 2.
During the revision
surgery on June 24, 2013, Dr. Rabalais reported that Chatman’s
laboratory
infection.
values
were
all
normal,
indicating
there
was
no
Dr. Rabalais diagnosed a Failed Right Knee Total
Arthroplasty. Response, p. 3. The plaintiff continued to complain
of pain in her right knee, and Dr. Rabalais performed a right knee
scope (arthroscopy) on December 12, 2014.
The scope revealed that
she had developed a significant amount of patellafemoral crepitus,
and a large amount of synovitis and scar tissue in the superior
pole of the patella.
Dr. Rabalais did a shaving and cleaned out
the extra scar tissue in the superior pole of the patella, as well
as the inferior pole of the patella and the medial gutters.
Id.
The plaintiff also complained of depression accompanying her severe
pain in the right knee, as indicated in her medical records, and
she was given medication.
Id.
In support of her products liability claim, the plaintiff
refers to a September 13, 2010, FDA Class 2 Recall of the NexGen
3
Complete Knee Solution MIS Tibial Components, Locking Screw and
Stem Extensions, stating that the FDA’s reason for the recall was
the receipt of complaints of loosening of the implanted device
requiring revision surgery.
Response, p. 7.
In its Rebuttal, the defendant states that the Class 2 Recall
by the FDA is irrelevant to any claim being made in this lawsuit,
inasmuch as the recalled product (the NexGen Complete Knee Solution
MIS Tibial Component (REF 00-5950-027-02)) is not the product that
the plaintiff received.
Because the plaintiff’s case involves an
entirely different product than that in the Recall Notice, the
plaintiff’s citation to cases discussing the admissibility of
substantially similar circumstances in accidents involving cranes
and hanging meat trailers are not apropos and do not serve to
further the plaintiff’s argument.
See Mitchell v. Fruehauf Corp.,
568 F.2d 1139, 1147 (5th Cir. 1978)(noting that “evidence of other
accidents
involving
the
accidents
occurred
under
same
the
product
same
or
is
admissible
substantially
if
such
similar
[circumstances] as that involving the plaintiff.”)(emphasis added).
Thus, the Recall Notice is irrelevant and not evidence of a defect
in the product at issue in this case.
The plaintiff also submits medical records from her treating
physicians to support her contention that the NexGen LPS knee was
defective. But, as a matter of law, records and testimony from the
plaintiff’s medical providers are insufficient to prove that a
4
defect existed in her NexGen LPS knee and that this unidentified
defect caused her injuries.
Instead, in order to survive summary
judgment, a plaintiff must present expert testimony that the
product is defective, and that the defect was the medical cause of
the plaintiff’s injuries.
Hammond v. Coleman Co., Inc., 61
F.Supp.2d 533, 542 (S.D. Miss. 1999), aff’d, 209 F.3d 718 (5th Cir.
2000)(granting summary judgment because plaintiff “offered no
expert testimony relating to manufacturing defects, design defects,
or warning or instruction defects, which precludes recovery on
those
allegations”)(internal
Bennett,
921
So.2d
1269,
citations
1269
(Miss.
omitted);
Williams
2006)(affirming
v.
summary
judgment where plaintiff failed to proffer expert testimony proving
handgun contained a defect).
The plaintiff has not properly designated any expert witnesses
nor provided any expert reports as required by Federal Rule of
Civil Procedure 26(a)(2)(B).
Baier,
opine
that
the
Zimmer’s experts, Dr. Kurtz and Dr.
plaintiff’s
Zimmer
knee
replacement
components were not defective, and that the plaintiff has suffered
no injury caused by her components.
The plaintiff has no expert
testimony to contradict Dr. Kurtz’s and Dr. Baier’s opinions.
Because this case involves a complicated medical device, the
plaintiff cannot survive summary judgment without expert opinion
that the components were defective and that they caused her alleged
injuries.
5
A
post-operative
diagnosis
for
Failed
Right
Knee
Total
Arthroplasty does not, without more, prove that the medical device
itself was defective.
Zimmer’s biomedical engineering expert, Dr.
Kurtz, opines that although total knee replacement generally has a
very high success rate, there are known risks associated with the
procedure.
These risks include implant loosening and a variety of
patient-related, surgeon-related, and implant-related factors, all
of which can occur for a variety of reasons that are unrelated to
any product defect.
Kurtz Declaration, ¶¶ 18-19.
In fact, in her
deposition, the plaintiff expressed the view that surgeon error
might have been a reason for her revision.
153:8-18.
Chatman Deposition, at
Furthermore, the scientific literature shows that the
Zimmer NexGen LPS knee has a long and successful clinical history
and is among the best performing knee replacement products in
clinical use.
Kurtz Declaration, ¶¶ 23, 25.
Additionally, Zimmer
documented the production of the NexGen LPS femoral and tibial
components implanted in the plaintiff, and they were inspected,
manufactured, and sterilized according to company procedures, and
a review of Zimmer’s complaint documentation found no systemic
problems with the components plaintiff received. Id., ¶ 26. Thus,
the only evidence in this case on the products liability issue
demonstrates that the plaintiff’s device was not defective.
The
plaintiff has failed to meet her burden to provide evidence to the
contrary.
6
Zimmer’s expert testimony and evidence is undisputed and
affirmatively demonstrates that (1) the device at issue was not
defective in design or manufacture; (2) Zimmer complied with its
duty to warn consistent with the Learned Intermediary Doctrine; and
(3) Zimmer never made, nor breached, any alleged warranties.
The Court therefore finds that the defendant’s motion for
summary judgment shall be granted, and the defendant’s motion in
limine is moot.
Accordingly,
IT IS HEREBY ORDERED that the defendant’s motion for summary
judgment (docket entry 34), is GRANTED;
FURTHER ORDERED that the defendant’s motion in limine (docket
entry 43). is MOOT.
A Final Judgment shall be entered this day.
SO ORDERED, this the 16th day of June, 2016.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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