Warner et al v. Stryker Corporation et al

Filing 85

MEMORANDUM DECISION denying 45 Motion for Partial Summary Judgment; denying 47 Motion for Summary Judgment. Signed by Judge Dale A. Kimball on 3/18/13. (jlw)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

CYNTHIA SHARKEY, GEORGE
LIMANTZAKIS, BRANDON RAUEN, and
SKYLER NIELSEN,
Plaintiffs,
v.
STRYKER CORPORATION and
STRYKER SALES CORPORATION,

MEMORANDUM DECISION
AND ORDER
Case No. 2:09CV536 DAK
Case No. 2:09CV624 DAK
Case No. 2:09CV1002 DAK
Case No. 2:09CV1061 DAK

Defendants.

This matter is before the court on Defendants Stryker Corporation and Stryker Sales
Corporation’s (collectively referred to as “Stryker”) Motions for Summary Judgment Re:
Liability and Motions for Summary Judgment Re: Punitive Damages in each of the four abovelisted cases.
A hearing on the motions was held on November 8, 2012. At the hearing, Plaintiffs
Cynthia Sharkey, George Limantzakis, Brandon Rauen, and Skyler Nielsen (collectively referred
to as “Plaintiffs”) were represented by Charles H. Thronson and Richard E. Mrazik. Stryker was
represented by Brent O. Hatch, Phillip J. Russell, and Hall R. Marston. Before the hearing, the
court carefully considered the memoranda and other materials submitted by the parties. Since
taking the matter under advisement, the court has further considered the law and facts relating to
these motions. Now being fully advised, the court renders the following Memorandum Decision

and Order.1
I.

STRYKER DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RE:
LIABILITY
Stryker seeks summary judgment because, it argues, the undisputed evidence indicates

that Stryker neither knew nor should have known of a risk of chondrolysis or any other
significant cartilage injury associated with its pain pump sufficient to promote a duty to warn as
of August 2004, the time of the last Plaintiff’s surgery.
This court previously denied Stryker’s Motion for Summary Judgment in a related case,
Creech v. Stryker, 2012 WL 33360 (D. Utah Jan. 6, 2012). Stryker acknowledges that Plaintiffs
in Creech relied on essentially the same evidence as they have presented in this case.2 In
Creech, the court found, among other things, that, “[c]onstruing all inferences in favor of
Plaintiffs,” they had presented sufficient “admissible evidence to create a genuine issue of
material fact as to whether Stryker knew or should have known or anticipated that the
administration of local anesthetics directly into the shoulder joint was toxic or otherwise
harmful.” Id. at 5.

1

The court also hereby adopts the Memorandum Decision and Order (as it pertains to
Stryker’s Motion for Summary Judgment) issued on January 6, 2012 (Docket No. 207) in the
related case of Creech v. Stryker Corp., Case No. 2:07cv22 DAK. The decision may also be
found at 2012 WL 33360 (D. Utah Jan. 6, 2012).
2

See Stryker’s Mem. In Supp. at 6. Stryker’s Memorandum in Support of Summary
Judgment Regarding Liability may be found at Docket No 59 in the Sharkey case, Docket No. 48
in the Limantzakis case, Docket No. 57 in the Rauen case, and Docket No. 46 in the Nielsen
case.
2

But Styker urges the court to consider that since this court’s Creech decision, two federal
Circuit Courts of Appeal, the Sixth Circuit and the Ninth Circuit, have issued opinions upholding
the trial court’s granting of Stryker’s motions for summary judgment. These courts have found
that no reasonable jury could conclude that Stryker had actual or constructive knowledge that use
of its pain pumps posed a risk of cartilage damage; therefore, Stryker had no duty to warn against
such use.
The first is a Sixth Circuit case, Rodriguez v. Stryker Corp., 680 F.3d 568 (6th Cir 2012).
In Rodriguez, the court analyzed the literature relied upon by plaintiffs and their designated
expert, Dr. Stephen Trippel (one of the experts in the instant case), and affirmed the trial court’s
grant of summary judgment on all the plaintiff’s claims.
This court, however, was well aware of the trial court’s decision in Rodriguez when it
denied Stryker’s Motion for Summary Judgment in Creech. The Rodriguez decision was cited
extensively in Stryker’s briefs and was discussed at oral argument on the Creech motion. The
court was unpersuaded by Rodriguez at the time. The fact that the Sixth Circuit has now
affirmed the trial court’s decision does not alter the court’s conclusion that the trial court wrongly
decided Rodriguez because it improperly weighed the evidence without making reasonable
inferences in the light most favorable to the non-moving party, as a court is required to do when
deciding a motion for summary judgment. See Byers v. City of Albuquerque, 150 F.3d 1271,
1274 (10th Cir. 1998).
Even the Sixth Circuit itself is conflicted on the issue. While knowing that it is bound by

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a previous panel’s decision, a different panel of the Sixth Circuit reversed course and determined,
less than three months after Rodriguez was decided, that the trial court had erred in granting
summary judgment on two of the plaintiff’s claims – for defective design and inadequate warning
or instruction. See Krumpelbeck v. Breg, Inc., 2012 WL 3242587 at *8 (6th Cir. Aug. 10, 2012)
(unpublished).3 The Sixth Circuit determined that the district court had made an impermissible
factual determination that the evidence was not sufficient to put a reasonable manufacturer on
notice of the need for testing to explore the potential risks inherent in such use. Id.
The next case relied upon by Stryker is Phillippi v. Stryker Corp., 2012 WL 759390 (9th
Cir., March 9, 2012), a case in which the Ninth Circuit affirmed a trial court’s ruling granting
summary judgment in favor of Stryker. Phillippi, however, is materially distinguishable from
the instant cases. The Phillippi court found that the plaintiff in that case had “provided
insufficient evidence to raise a known or knowable risk of chondrolysis.” Id. at *1. Indeed,
unlike the cases at bar, the plaintiff had failed to submit any expert testimony to support his
negligence claim. See Phillippi v. Stryker Corp., 2010 WL 2650596, at *2 (E.D. Cal. July 1,
2010 ). Thus, the court finds Phillippi to be entirely unpersuasive.4

3

Stryker argues that Krumplebeck is unreliable in the Sixth Circuit because it did not
follow Rodriguez’s binding precedent. Of course Krumplebeck has no binding authority in the
Sixth Circuit (or anywhere else), as it is unpublished and contrary to a published decision in an
earlier Sixth Circuit case. But it nevertheless gives some credence to Plaintiffs’ argument in this
case that Rodriguez was wrongly decided and is an outlier.
4

Stryker later filed a notice of supplemental authority regarding Mack v. Stryker, a case
in the District of Minnesota in which the court granted Stryker’s motion for summary judgment.
4

Accordingly, given that this court previously declined to follow Rodriguez, and given that
the court is not persuaded by the Sixth Circuit’s decision to affirm Rodriguez, particularly in light
of the Sixth Circuit’s reasoning in Krumpelbeck, and given that the court finds Phillippi to be
materially distinguishable and therefore unpersuasive, the court declines to reverse its previous
decision in Creech. The court therefore denies Stryker’s Motions for Summary Judgment Re:
Liability.
II. STRYKER’S MOTION FOR SUMMARY JUDGMENT RE: PUNITIVE DAMAGES
Stryker seeks what is essentially reconsideration of the court’s decision in Creech
regarding the punitive damages claims. Stryker argues that no reasonable jury could conclude
that Plaintiffs have presented, by clear and convincing evidence, sufficient facts to prove that
Stryker actually knew of a risk of serious and permanent cartilage damage from the use of its
pain pumps and, as a result, Plaintiffs’ punitive damages claims should be dismissed.
Plaintiffs, on the other hand, argue that the court was correct in Creech when it declined
to dismiss the punitive damages claims. Plaintiffs contend that punitive damages are warranted
where "it is established by clear and convincing evidence that the acts or omissions of the
tortfeasor are the result of . . . a knowing and reckless indifference toward, and a disregard of, the
rights of others." Utah Code Ann. § 78B-8-201(a) (emphasis added). Plaintiffs agree with
Stryker that "[t]o prove that a tortfeasor's actions were knowing and reckless, a party must prove
that the tortfeasor knew of a substantial risk and proceeded to act or failed to act while
consciously ignoring that risk." Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, ¶42,
5

221 P.3d 256, 269 (Utah 2009). But Plaintiffs contend that Stryker incorrectly cites Barson v.
E.R. Squibb & Sons, Inc., 682 P.2d 832, 835-836 (Utah 1984), for the erroneous proposition that
"[i]n a failure to warn case such as this one, actual knowledge has already been clearly defined:
'Actual knowledge' means information Stryker actually gained from research it conducted or
adverse reports of which it received actual notice." Rather, Plaintiffs point out, Barson states:
In determining whether a manufacturer has breached that duty and the extent to
which a manufacturer is required to know of dangers inherent in its drug, it is
important to point out that the drug manufacturer is held to be an expert in its
particular field and is under a "continuous duty . . . to keep abreast of scientific
developments touching upon the manufacturer's product and to notify the medical
profession of any additional side effects discovered from its use." The drug
manufacturer is responsible therefore for not only "actual knowledge gained from
research and adverse reaction reports," but also for "constructive knowledge as
measured by scientific literature and other available means of communication.
682 P.2d at 835-836 (internal citations omitted; emphasis added). In addition, the Utah Supreme
Court is clear that " [w ]hat constitutes actual knowledge will be case specific." Daniels, 2009
UT 66, ¶ 44 (remanding to trial court for a determination of whether tortfeasor's gross negligence
included "knowing conduct").
Plaintiffs also argue that, in contrast to Stryker's case references, there are a number of
pain pump cases in which district courts have decided against granting summary judgment
regarding the plaintiffs' claims for punitive damages on the basis that the extent of Stryker's
knowledge is a question of fact, just as this court ruled in Creech. For example, in Schoenborn v.
Stryker Corp., 801 F. Supp. 2d 1098 (D. Or. 2011), the court found that all the issues, including
punitive damages, were appropriate for a trier of fact. Similarly, here, Plaintiffs urge the court to
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deny Stryker’s motions because the evidence relied upon by Plaintiffs is very similar to that in
Schoenborn, and furthermore, the court previously denied summary judgment on almost identical
evidence in Creech.
The court agrees with Plaintiffs. As stated in Creech, "[t]o prove that a tortfeasor's
actions were knowing and reckless, a party must prove that the tortfeasor knew of a substantial
risk and proceeded to act or failed to act while consciously ignoring that risk." Daniels v.
Gamma West Brachytherapy, LLC, 221 P.3d 256, 269 (Utah 2009) (emphasis added).
Recklessness includes conduct where “the actor kn[ew], or ha[d] reason to know . . . of facts
which create a high degree of risk of physical harm to another, and deliberately proceeds to act,
or to fail to act, in conscious disregard of, or indifference to, that risk.” Id. (quoting Restatement
(Second) of Torts § 500 cmt. a (1965)). Again, as the court previously stated in Creech, “while
Plaintiffs’ evidence supporting a punitive damage award is admittedly thin,” a jury will decide
the extent of Stryker's knowledge or constructive knowledge. Accordingly, Stryker’s Motion for
Summary Judgment Re: Punitive Damages is denied.
III. CONCLUSION
For the foregoing reasons and good cause appearing, IT IS HEREBY ORDERED that:
Stryker’s Motions for Summary Judgment Re: Liability are DENIED5 and Styker’s Motions for

5

The Docket Numbers of the Summary Judgment Motions Re: Liability in each of the
cases is as follows: Sharkey v. Stryker, Case No. 2:09CV536, Docket No. 58; Limantzakis v.
Stryker, Case No. 2:09CV624, Docket No. 47; Rauen v. Stryker, Case No. 2:09CV1002, Docket
No. 56; Nielsen v. Stryker, Case No. 2:09CV1061, Docket No. 45.
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Summary Judgment Re: Punitive Damages are DENIED.6 The parties are directed to contact the
court to set a trial date for the above-listed cases.
DATED this 18th day of March, 2013.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

6

The Docket Numbers of the Summary Judgment Motions Re: Punitive Damages in
each of the cases is as follows: Sharkey v. Stryker, Case No. 2:09CV536, Docket No. 56;
Limantzakis v. Stryker, Case No. 2:09CV624, Docket No. 45; Rauen v. Stryker, Case No.
2:09CV1002, Docket No. 54; Nielsen v. Stryker, Case No. 2:09CV1061, Docket No. 43.
8