Henneman et al v. Zimmer Holdings, Inc. et al

Filing 23

ORDER re: defts' motion to dismiss 8 - It is hereby ORDERED that: 1. Motion to dismiss 8 Counts II & III & limit Count IV GRANTED.; 2. Consortium claim in Count IV of the complaint shall be limited to the claims arising out of Count I of the complaint. (See order for complete details.) Signed by Honorable Christopher C. Conner on 07/11/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT W. HENNEMAN and
MARY LOU HENNEMAN,
Plaintiffs,
v.
ZIMMER HOLDINGS, INC. and
ZIMMER, INC.

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CIVIL ACTION NO. 4:12-CV-0740
(Judge Conner)

ORDER
AND NOW, this 11th day of July, 2012, upon consideration of the motion to
dismiss (Doc. 8) filed by defendants Zimmer Holdings, Inc. and Zimmer, Inc.,
wherein defendants move to dismiss Counts II and III of the Complaint (Doc. 1-1)
and limit Count IV of the Complaint filed by Robert W. Henneman and Mary Lou
Henneman, and it appearing that plaintiffs assert a cause of action for strict liability
in Count II, breach of implied and/or express warranties in Count III, and loss of
consortium in Count IV stemming from the allegedly defective Zimmer Rotating
Hinge Total Condylar Knee medical device, which was manufactured, distributed
and sold by the defendants, and the court noting that Rule 12(b)(6) of the Federal
Rules of Civil Procedure provides for the dismissal of complaints that fail to state a
claim upon which relief can be granted, see FED . R. CIV . P. 12(b)(6), and the court
finding that, under Pennsylvania law plaintiffs may not assert strict liability and
implied warranty causes of actions against a manufacturer of medical devices, see
Creazzo v. Medtronic, Inc., 903 A.2d 24, 31 (Pa. Super. Ct. 2006); Kester v. Zimmer
Holdings, Inc., No. 2:10-cv-00523, 2010 WL 2696467, at *9, 11 (W.D. Pa. 2010); see

also Parkinson v. Guidant Corp., 315 F. Supp. 2d 741, 747, 752-53 (W.D. Pa. 2004),
and the court noting that a loss of consortium claim is a derivative claim, see
Scattaregia v. Shin Shen Wu, 495 A.2d 552, 553 (Pa. Super. Ct. 1985); Murray v.
Commercial Union Ins. Co., 782 F.2d 432, 438 (3d Cir. 1986), and should therefore be
dismissed to the extent the direct causes of action are dismissed, and upon further
consideration of plaintiffs’ response (Doc. 20) to defendants’ motion to dismiss,
wherein plaintiffs concede that under current Pennsylvania law defendants are
correct with regard to Counts II, III and limiting Count IV, it is hereby ORDERED
that:
1.

The motion to dismiss (Doc. 8) Counts II and III and limit Count IV is
GRANTED.

2.

The consortium claim in Count IV of the Complaint (Doc. 1-1) shall be
limited to the claims arising out of Count I of the Complaint.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge