Cox et al v. KLS Martin, L.P.
Filing
77
ORDER and OPINION granting in part and denying in part 63 motion for summary judgment. Signed on 02/27/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
J.C, et al.,
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Plaintiffs,
vs.
KLS MARTIN, L.P.,
Defendant.
Case No. 10-1204-CV-W-ODS
ORDER AND OPINION GRANTING IN PART AND DENYING IN PART MOTION FOR
SUMMARY JUDGMENT (DOC. 63)
Defendant moves for summary judgment. The motion is granted in part and
denied in part.
I. BACKGROUND
The Court provided the factual background in its recent order dealing with expert
testimony. Order, Doc. 76, pp. 1–2. Pending is Defendant KLS’s motion for summary
judgment on Plaintiffs’ claims of negligent manufacture of the distractor, strict products
liability, and breach of the implied warranties of merchantability and fitness for a
particular purpose.
II. DISCUSSION
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
(1) Failure to Warn
KLS argues it is entitled to summary judgment on Plaintiffs’ strict liability and
negligent failure to warn claim. KLS relies on the warning it provided in the brochure
accompanying the distractor, which includes step-by-step instructions for surgically
implanting the device. (KLS asserts Dr. Singhal acted as a “learned intermediary”
between it and Plaintiffs, such that its warning to him is deemed a warning to Plaintiffs.)
The warning is contained in those instructions, which state in relevant part:
5)
Prepare KLS microdistractor by cutting off excess plates so that
there are 3 to 4 holes available for screw fixation.
6)
The micro plates can be bent to ensure good bone contact.
* CAUTION: extreme care must be taken to protect the welds
during the bending procedure. Place one plate bender (25-486-13)
next to weld and use other bender to modify the plate.
In step 6, KLS’s warned Dr. Singhal to take extreme care to “protect the welds
during the bending procedure” (emphasis added). But Plaintiffs have presented
evidence (which KLS does not dispute) that the weld failed because of bending that
occurred during step 5—the cutting procedure. Although KLS characterizes these two
steps as “a single process,” Suggestions in Reply, Doc. 74, p. 8, Dr. Singhal described it
as steps in a sequence, a description more consistent with KLS’s brochure. The
warning in step 6 expressly applies to the bending procedure and says nothing
protecting the weld during the cutting procedure.
KLS nevertheless contends it is entitled to summary judgment on Plaintiffs’
failure to warn claim because when Dr. Singhal was asked whether KLS provided
warnings about excessive bending of the plates, Dr. Singhal responded, “Yes. They
have told us from the very beginning that if you bend a plate excessively you would
break them or snap them off, so we are very aware of it.” KLS asserts “there is no basis
to suggest that Dr. Singhal was somehow unaware of the risk of excessive bending
when cutting.” Suggestions in Reply, Doc. 74, p. 8. But Dr. Singhal’s other testimony
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suggests this warning was provided in the context of the bending procedure (which is
how it is expressed in KLS’s brochure), not the cutting procedure. Dr. Singhal testified
he performed the surgeries the same way each time, and in JC’s case, he used KLS’s
bending forceps to protect the weld during the bending procedure but not the cutting
procedure. He also testified that during JC’s surgery he did nothing that was
inconsistent with KLS’s instructions.
KLS lastly argues with respect to Plaintiffs’ failure to warn claim that Dr. Singhal
should have known to use plate benders while cutting the device because the risk of
weld failure was obvious. KLS characterizes Dr. Singhal’s failure to do so as “contrary
to common sense.” Suggestions in Reply, Doc. 74, p. 4. But there is evidence Dr.
Singhal reasonably did not expect such a procedure was necessary. KLS’s brochure
only mentioned weld protection in the context of the bending procedure. Dr. Singhal
performed distraction procedure for several years, following the same sequence every
time (according to him), and he had never experienced failure of a distractor’s post-plate
weld. And a KLS representative always (or frequently) attended the distraction
surgeries, and they never told Dr. Singhal he was doing anything incorrect when cutting
the bone fixation plates.1 Whether Dr. Singhal should have known to use the bending
pliers (or other instruments known as forceps or plate benders) during the cutting
procedure is a disputed issue of fact, precluding summary judgment on Plaintiff’s failure
to warn claims.
(2) Strict Liability: Design Defect and Reasonably Anticipated Use
KLS also contends the distractor device was not used by Dr. Singhal in a manner
reasonably anticipated. See Mo. Ann. Stat. § 537.760(2). KLS argues “it is not
reasonable to have anticipated that Dr. Singhal would ignore the clear warning and
instructions as to how to properly bend and cut the distractor’s fixation plates.”
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Even after the complaint in this case was filed, KLS had not informed Dr. Singhal that it
believed the weld failed because he neglected to use plate benders to protect the weld while cutting, and it
is unclear whether KLS has ever directly informed Dr. Singhal of its belief.
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Suggestions in Support, Doc. 61, p. 36. But as already discussed, the warnings and
instructions were not “clear.” And even if Dr. Singhal misused the device by bending
the distal bone plate without plate benders during the cutting procedure, a reasonable
jury could conclude this misuse was objectively foreseeable to KLS in light of the
instructions in the brochure (only warning to protect the weld during the bending
procedure), the presence of a KLS representative during every or most of Dr. Singhal’s
surgeries, and Dr. Singhal’s testimony that he followed the same sequence in modifying
the device during every surgery. See Nesselrode v. Executive Beechcraft, Inc., 707
S.W.2d 371, 381 (Mo. 1986) (“The concept of reasonably anticipated use, however,
includes misuse and abnormal use which is objectively foreseeable” (citation omitted).)
This holding also disposes of KLS’s argument it is entitled to summary judgment on the
issue of causation.
KLS next argues Plaintiffs have no evidence the distractor was defective
because Dr. Dobbs’ opinion is inadmissible as expert testimony. The Court rejected this
argument in its order denying KLS’s motion to exclude testimony. Order, Doc. 76, pp.
3-8. KLS is not entitled to summary judgment on Plaintiffs’ strict liability claim.
(3) Negligent Manufacturing
Plaintiffs’ complaint alleges KLS was negligent in manufacturing the device. KLS
contends it is entitled to summary judgment because Plaintiffs have no evidence to
support this claim. Plaintiffs do not oppose this argument, and in the Eighth Circuit
“failure to oppose a basis for summary judgment constitutes waiver of that argument.”
Satcher v. University of Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d 731, 735 (8th
Cir. 2009). KLS is granted summary judgment on Plaintiffs’ claim that KLS was
negligent in manufacturing the device.
Plaintiffs’ complaint also alleges KLS was negligent in the following ways: failing
to exercise ordinary care to discover the defective implant and remove the dangerous
and unsafe condition; and failing to give notice and warning of the unsafe and
dangerous condition caused by the faulty implants. These appear to be theories of
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relief separate from the claim of negligent manufacturing, and KLS has not moved for
summary judgment on them, so they remain pending.
(4) Implied Warranties
Some of KLS’s arguments for summary judgment on Plaintiffs’ implied warranty
claims have been addressed already (e.g., that Dr. Singhal was adequately warned to
use plate benders while cutting the device). As for those arguments that have not been
considered, KLS first contends it is entitled to summary judgment because it did not sell
the distractor device to Plaintiffs—it sold it to the hospital where the procedure was
performed. Plaintiffs counter with Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322
S.W.3d 112, 129 (Mo. 2010), which noted “a remote purchaser may bring suit against
the manufacturer for breach of implied warranties” (citations omitted). In response, KLS
does not acknowledge Renaissance Leasing or its principle of law, or offer any contrary
authority. The Court holds that Plantiffs’ status as remote purchasers does not preclude
KLS from being liable for breach of implied warranties.
Next, KLS argues it is entitled to summary judgment on Plaintiffs’ implied
warranty claims because Plaintiffs have no evidence they relied on any representations
by KLS. But reliance is not an element of a claim for breach of the implied warranty of
merchantability, so KLS’s argument in that respect is denied. See Mo. Ann. Stat.
§ 400.2-314 (stating when warranty of merchantability is implied); Missouri Approved
Instructions 25.08 (stating elements of merchantability claim); see also Matulunas v.
Baker, 569 S.W.2d 791, 795 n.2 (Mo. Ct. App. 1978 (noting cases holding reliance not
an element of merchantability claim); 3 Anderson U.C.C. § 2-314:158 (3d. ed.) (stating
reliance not required).
Reliance does however arise in the context of the implied warranty of fitness for a
particular purpose (although not reliance on representations). This implied warranty
involves a seller with reason to know “the buyer is relying on the seller's skill or
judgment to select or furnish suitable goods.” Mo. Ann. Stat. § 400.2-315. The
undersigned has granted summary judgment to a drug manufacturer on an implied
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warranty of fitness claim (and other claims) because “[t]he record conclusively
demonstrate[d] [the plaintiff] [could not] establish the reliance required for these claims”:
“the buyer never read any material regarding the drug or side effects, read any
advertising in making her decision to take the drug, or relied on any written or oral
statements from [the manufacturer] in ‘deciding’ to ‘buy’ [the drug].” Lachance v.
American Home Products Corp., No. 01–0890–CV–W–ODS, 2006 WL 89850, at *3
(W.D. Mo. 2006). Like the plaintiff in Lachance, Plaintiffs have not presented any
evidence of reliance. KLS is granted summary judgment on Plaintiffs’ claim KLS
breached the implied warranty of fitness for a particular purpose.
III. CONCLUSION
KLS is granted summary judgment on Plaintiffs’ claims of negligent
manufacturing and breach of the implied warranty of fitness for a particular purpose. In
all other respects, KLS’s motion for summary judgment is denied.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: February 27, 2012
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