Sura v. Zimmer, Inc. et al

Filing 51

DECISION AND ORDER granting 41 Defendants' Motion for Summary Judgment. The Clerk of the Court is instructed to enter judgment in favor of Defendants and to close the case. (Copy of this Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 4/11/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
KEVIN SURA,
Plaintiff,

15-cv-6719 MAT
DECISION
AND ORDER

v.
ZIMMER, INC., ZIMMER HOLDINGS, INC.,
and ZIMMER ORTHOPEDIC SURGICAL PRODUCTS,
INC.,
Defendants.
________________________________________
INTRODUCTION
Plaintiff

Kevin

Sura

(“Plaintiff”),

who

was

initially

represented by counsel but is now proceeding pro se, commenced the
instant action on November 30, 2015 (Docket No. 1).

Plaintiff

asserts that Defendants Zimmer, Inc., Zimmer Holdings, Inc., and
Zimmer Orthopedic Surgical Products, Inc. (collectively “Zimmer” or
“Defendants”)

were

negligent

in

developing,

designing,

and

engineering a knee replacement component, and that Plaintiff was
damaged as a result of Defendants’ negligence.
Currently pending before the Court is a motion for summary
judgment filed by Defendants. Docket No. 41.

Defendants seek

judgment in their favor on the basis the Plaintiff has failed to
timely identify any expert testimony related to the alleged design
defect, and that Plaintiff therefore cannot prove the essential
elements of his claim. For the reasons discussed below, the Court
grants Defendants’ motion.

BACKGROUND
The following facts are taken from the respective statements
of fact, affidavits, and exhibits submitted by the parties.
Defendants

are

the

replacement components.
knee

replacement

designers

and

manufactures

of

knee

On April 24, 2012, Plaintiff underwent

surgery

at

Highland

Hospital

New York, and received Zimmer components.

in

Rochester,

According to Plaintiff,

he underwent multiple follow-up procedures, but ultimately had to
have

all

Zimmer

knee

replacement

components

removed

and

was

implanted with new, non-Zimmer components.
Plaintiff commenced this action on November 30, 2015.

Docket

No. 1. Plaintiff was initially represented by counsel, and filed
the short-form complaint for a multi-district litigation (“MDL”)
venued in the Northern District of Illinois. See Docket Nos. 1, 3.
However, it was subsequently determined that Plaintiff did not
receive any of the knee replacement components involved in the MDL,
and his counsel withdrew from the case.

See Docket Nos. 4-5, 8,

13.
On September 1, 2016, the Court entered an order allowing
Plaintiff six months in which to retain replacement counsel.
Docket No. 17.
complaint

On February 27, 2017, Plaintiff filed an amended

asserting

a

single

claim

Defendants, alleging a design defect.

of

negligence

Docket No. 18.

against
Plaintiff

subsequently appeared at a scheduling conference on March 1, 2017,
at which he informed the Court that he intended to proceed pro se.
See Docket No. 20.
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The Court entered a Case Management Order on March 1, 2017,
setting a deadline of September 15, 2017 for Plaintiff to identify
any expert witnesses.

Docket No. 23.

On September 21, 2017,

Plaintiff filed a motion seeking an extension of this deadline.
Docket No. 30.

The Court granted Plaintiff’s motion and extended

his deadline to identify expert witnesses to October 30, 2017.
Docket Nos. 29, 31.
On November 17, 2017, Plaintiff filed a second motion seeking
an extension of his deadline to identify expert witnesses.
No. 34.

Docket

The Court granted this motion and extended Plaintiff’s

deadline to identify expert witnesses to January 10, 2018.

Docket

Nos. 39, 40.
Plaintiff

failed

January 10, 2018.

to

identify

any

expert

witnesses

by

Plaintiff also failed to move for any further

extensions or take any other action to address his failure to meet
the Court-ordered deadline.
On February 13, 2018, Defendants filed the instant motion for
summary judgment.

Docket No. 41.

Defendants’ Certificate of

Service indicates that they served Plaintiff with a copy of the
Important Notice to Pro Se Litigants required by Local Rule of
Civil Procedure 56, which informs pro se litigants of the potential
consequences of a motion for summary judgment and explains what
must be filed in response. See Docket No. 41 at 4.
The Court set a response deadline of March 14, 2018 and a
reply deadline of March 28, 2018.

Plaintiff did not file his

response papers until March 28, 2018 (Docket No. 46), two weeks
Page -3-

past the response deadline.

Accordingly, Defendants filed their

reply papers on April 4, 2018.

Docket No. 50.

DISCUSSION
I.

Standard of Review
Pursuant

to

Rule

56(a)

of

the

Federal

Rules

of

Civil

Procedure, the Court will grant summary judgment if the moving
party demonstrates that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law. When considering a motion for summary judgment, all genuinely
disputed facts must be resolved in favor of the party against whom
summary judgment is sought. See Tolan v. Cotton, 134 S.Ct. 1861,
1863 (2014).

If, after considering the evidence in the light most

favorable to the nonmoving party, the court finds that no rational
jury could find in favor of that party, a grant of summary judgment
is appropriate.

See Scott v. Harris, 550 U.S. 372, 380 (2007)

(citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587 (1986)).
II.

The Court Will Consider Plaintiff’s Response
As a threshold matter, Defendants urge the Court to disregard

Plaintiff’s

response

to

the

pending

motion

inasmuch as it was filed two weeks late.

in

its

entirety,

However, in light of

Plaintiff’s pro se status, and in the interests of justice, the
Court will

excuse

Plaintiff’s

late

filing.

It

appears

that

Plaintiff may have been confused by the Court’s scheduling order
and may have believed that the relevant deadline for his papers was
the March 28, 2018 date for reply papers.
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Moreover, Defendants

have had the opportunity to file reply papers (see Docket No. 50),
which the Court has read and considered. Accordingly, no prejudice
to Defendants has resulted from Plaintiff’s late filing.
III. Defendants are Entitled to Summary Judgment
Defendants seek summary judgment on the basis the Plaintiff is
unable

to

prove

the

essential

elements

of

his

claim.

In

particular, Defendants contend that Plaintiff has not identified
any expert witnesses and that “[b]lack-letter New York law requires
plaintiffs to prove the elements of product defect and medical
causation in a complex medical device case with expert testimony.”
Docket No. 42 at 6. In opposition to Defendants’ motion, Plaintiff
argues that Defendants did not supply him with requested discovery
until December 28, 2017, leaving him insufficient time to retain an
expert witness.
The Court's jurisdiction in this matter is based on the
parties’ diversity of citizenship.

Accordingly, the substantive

law of New York governs.

See Shady Grove Orthopedic Assocs., P.A.

v.

559

Allstate

Ins.

Co.,

U.S.

393,

417

(2010)

(“It

is

a

long-recognized principle that federal courts sitting in diversity
apply state substantive law and federal procedural law.”) (internal
quotation omitted).
impose

liability

Under New York law, “[a] plaintiff seeking to
for

a

design

defect

must

demonstrate

the

following: (1) the product, as designed, posed a substantial
likelihood of harm; (2) it was feasible to design the product in a
safer manner; and (3) the defective design was a substantial factor
in causing plaintiff’s injury.”

Maxwell v. Howmedica Osteonics

Page -5-

Corp., 713 F. Supp. 2d 84, 90 (N.D.N.Y. 2010).

“[A] plaintiff

seeking to establish a design defect is required to provide expert
testimony

as

to

the

designs.”

Id. at 91.

feasibility

and

efficacy

of

alternative

Additionally, “in products liability cases,

to establish causation, [plaintiffs] must offer admissible expert
testimony regarding both general . . . and specific causation.”
Coleson v. Janssen Pharm., Inc., 251 F. Supp. 3d 716, 723 (S.D.N.Y.
2017) (internal quotations omitted).
In

this

identified

case,

any

it

expert

is

undisputed

witnesses

or

that

Plaintiff

otherwise

has

produced

not

expert

testimony regarding the feasability and efficacy of alternative
designs or regarding causation.

Accordingly, on the current

record, Plaintiff will not be able to prove the essential elements
of his design defect claim.
Plaintiff does not dispute the fact that he has failed to
produce any expert testimony in this case. Instead, he argues that
he should be given more time to identify and retain an expert
witness, because Defendants did not provide him with discovery
responses until December 2017.

However, Plaintiff has failed to

show that Defendants engaged in dilatory discovery conduct, and has
further offered no explanation for why he failed to seek an
additional extension of his deadline for expert disclosure.
The Court acknowledges that Plaintiff is proceeding pro se and
that,

accordingly,

some

leeway

is

appropriate.

However,

“[a]lthough pro se litigants should be afforded latitude, they
generally are required to inform themselves regarding procedural
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rules and to comply with them.” LoSacco v. City of Middletown, 71
F.3d 88, 92 (2d Cir. 1995) (citations and internal quotation marks
omitted).

“It is especially true that pro se litigants bear the

obligation to comply with procedural rules when the rules, such as
deadlines to act, can easily be understood and appreciated without
a legal education.”

Kalamaras v. Lombardi, No. CV 11-1262 JS ARL,

2012 WL 6091394, at *1 (E.D.N.Y. Nov. 14, 2012), report and
recommendation adopted, 2012 WL 6094148 (E.D.N.Y. Dec. 7, 2012);
see also Caidor v. Onondaga Cty., 517 F.3d 601, 605 (2d Cir. 2008).
In

this

case,

Plaintiff

clearly

understood

that

he

was

required to identify expert witnesses by the deadline set forth in
the Court’s Case Management Order, as amended.

Indeed, Plaintiff

demonstrated the he was fully capable of requesting extensions of
that deadline, as he did on two separate occasions.

Nevertheless,

Plaintiff failed to comply with the amended deadline of January 10,
2018, and failed to seek any additional extensions.

Plaintiff has

offered no explanation for his failure to move this Court to extend
his deadline.
Additionally, there is no indication in Plaintiff’s response
to the instant motion that he has engaged an expert witness,
despite

the

fact

that

he

affirmatively

alleges

he

received

Defendants’ discovery demands in December 2017, roughly four months
ago.

In other words, there is no basis for the Court to conclude

that, even were it to grant another extension, Plaintiff would be
in a position to comply with the amended deadline.

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Moreover,

Plaintiff’s

claim

that

Defendants

engaged

in

dilatory discovery tactics is wholly unsupported. To the contrary,
it was Plaintiff who waited until September 12, 2017, just three
days

before

discovery

his

initial

demands.

expert

Defendants

disclosure
subsequently

deadline,

to

consented

to

file
two

adjournments of the expert witness disclosure deadline, giving
Plaintiff ample time to comply with his discovery obligations.
“Simple

allegations

of

improper

discovery

tactics

are

not

sufficient to defeat a summary judgment motion, particularly where
the party making those allegations has failed to take advantage of
the appropriate avenues of relief available under the Federal Rules
of Civil Procedure.”

Bank of Am. Nat. Tr. & Sav. Ass'n v. Envases

Venezolanos, S.A., 740 F. Supp. 260, 269 (S.D.N.Y. 1990).
In sum, the Court finds that Plaintiff has not proffered any
reasonable explanation for his failure to comply with the expert
witness disclosure deadline, nor has he shown that an additional
extension of time is warranted.

Because Plaintiff has failed to

identify any expert witnesses, under applicable New York law, he
will not be able to prove the essential elements of his sole claim
against Defendants.

See Hilaire v. DeWalt Indus. Tool Co., 54 F.

Supp. 3d 223, 252 (E.D.N.Y. 2014) (a “party cannot survive summary
judgment

on

testimony”)

a

design

(quotation

defect

claim

omitted).

without
As

admissible

such,

expert

Defendants

have

demonstrated their entitlement to summary judgment in their favor,
and their motion is granted.

Page -8-

CONCLUSION
For the reasons set forth above, the Court grants Defendants’
motion for summary judgment (Docket No. 41).

The Clerk of the

Court is instructed to enter judgment in favor of Defendants and to
close the case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
April 11, 2018

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