KLINE et al v. ZIMMER HOLDINGS, INC et al

Filing 23

ORDER granting in part and denying in part 12 Motion to Dismiss, treated as a partial motion for judgment on the pleadings. adopting Report and Recommendations re 20 Report and Recommendations as an opinion of the court. As to the strict liabi lity claims in Count II, the motion is granted with respect to plaintiffs' design defect and failure to warn claims, but denied with respect to plaintiffs' manufacturing defect claim; as to the breach of implied warranties claims in Count I II, the motion is granted with respect to plaintiffs' claim of breach of the implied warranty of fitness for a particular purpose and the claim of breach of implied warranty of merchantability based upon the design defect and failure to warn cla ims, but denied with respect to plaintiffs' claim of breach of the implied warranty of merchantability based upon a manufacturing defect; as to the breach of express warranties claims in Count IV, the motion is granted.; Signed by Judge Joy Flowers Conti on 6/27/2013. (smc )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GREGORY KLINE and CHERRIE KLINE, )
Plaintiffs,
)
)
vs
)
)
ZIMMER HOLDINGS, INC., et al.,
)
Defendants.
)

Civil Action No. 13-513

ORDER
AND NOW, this 27th day of June, 2013, after the plaintiffs, Gregory and Cherrie
Kline, filed an action in the above-captioned case, and after a partial motion to dismiss was
submitted by the defendants, Zimmer Holdings, Inc., Zimmer, Inc. and Zimmer US, Inc., and
after a Report and Recommendation was filed by the United States Magistrate Judge granting the
parties a period of time after being served with a copy to file written objections thereto, and no
objections having been filed, and upon independent review of the motion and the record, and
upon consideration of the Magistrate Judge’s Report and Recommendation (ECF No. 20), which
is adopted as the opinion of this Court,
IT IS ORDERED that the partial motion to dismiss filed on behalf of the defendants
(ECF No. 12), treated as a partial motion for judgment on the pleadings, is granted in part and
denied in part as follows: as to the strict liability claims in Count II, the motion is granted with
respect to plaintiffs’ design defect and failure to warn claims, but denied with respect to
plaintiffs’ manufacturing defect claim; as to the breach of implied warranties claims in Count III,
the motion is granted with respect to plaintiffs’ claim of breach of the implied warranty of fitness
for a particular purpose and the claim of breach of implied warranty of merchantability based

upon the design defect and failure to warn claims, but denied with respect to plaintiffs’ claim of
breach of the implied warranty of merchantability based upon a manufacturing defect; as to the
breach of express warranties claims in Count IV, the motion is granted.

/s/ Joy Flowers Conti
Joy Flowers Conti
United States District Judge