Nester v. Biomet Inc et al

Filing 28

ORDER signed by Judge J P Stadtmueller on 8/30/2024. Plaintiff's voluntary dismissal of Counts II, IV, VII, VIII, and IX in the amended complaint is ADOPTED; such counts are DISMISSED without prejudice. 17 Defendants' Motion for Summary Judgment is GRANTED; Counts I, III, V, VI, and X in the amended complaint are DISMISSED with prejudice. CASE DISMISSED. See Order. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN P. NESTER,
Plaintiff,
v.
Case No. 22-CV-1362-JPS
BIOMET, INC., BIOMET
ORTHOPEDICS, LLC, BIOMET U.S.
RECONSTRUCTION, LLC, and
BIOMET MANUFACTURING, LLC,

ORDER

Defendants.

1.

INTRODUCTION
In this action, Plaintiff John P. Nester (“Plaintiff”) sues Defendants

Biomet, Inc., Biomet Orthopedics, LLC, Biomet U.S. Reconstruction, LLC,
and Biomet Manufacturing, LLC (collectively, “Defendants”), who
manufactured Plaintiff’s metal-on-metal hip prosthetic that allegedly
caused metal contamination within his body. See generally ECF No. 5
(amended complaint). Plaintiff brings strict liability claims for design
defects, id. at 21–23, and manufacturing defects, id. at 26–28; negligence
claims for design defects, id. at 25–26, and manufacturing defects, id. at 28;
and a claim for punitive damages, id. at 32–33. For relief, Plaintiff seeks
compensatory damages for pain, suffering, emotional distress, reduction in

Page 1 of 31

quality of life, and other non-economic harms; medical expenses; punitive
damages; all pre- and post-judgment interest; and attorney’s fees. Id. at 33.1
On February 2, 2024, Defendants moved for summary judgment on
the grounds that Plaintiff’s suit is barred by Wisconsin’s three-year statute
of limitations on personal injury suits, or alternatively that Wisconsin’s
fifteen-year statute of repose bars Plaintiff’s strict liability claims.2 See
Plaintiff included in the amended complaint additional causes of action
for strict liability failure to warn, ECF No. 5 at 23–25; negligent failure to warn and
negligent marketing, id. at 26; breach of express warranty, id. at 28–29; breach of
implied warranty, id. at 29–30; and fraudulent concealment, id. at 30–32. On
February 1, 2024, the parties “agreed” that Plaintiff would withdraw these causes
of action (Counts II, IV, VII, VIII, and IX in the amended complaint). ECF No. 18
at 4 n.1.
1

This voluntary dismissal, agreed upon outside of court, is permitted under
Federal Rule of Civil Procedure 41(a)(1)(A). It occurred one day before Defendants
moved for summary judgment, so the Court will construe it as a notice of
voluntary dismissal. See id. at 41(a)(1)(A)(i) (“[T]he plaintiff may dismiss an action
without a court order by filing . . . a notice of dismissal before the opposing party
serves either an answer or a motion for summary judgment . . . .”). Moreover, the
Court may permit dismissal of individual claims under Rule 41. See Gatling v.
Nickel, 275 F.R.D. 495, 496 (E.D. Wis. 2011) (“Rule 41 contemplates, more generally,
a court’s power to dismiss individual claims. . . . It would seem needlessly
constraining, where Rule 41 otherwise contemplates the dismissal of individual
claims [over the objection of a party], to prohibit the dismissal of individual claims
under Rule 41(a) where both parties have stipulated to such.”); but see Berthold
Types Ltd. v. Adobe Sys., Inc., 242 F.3d 772, 776–77 (7th Cir. 2001) (“Rule
41(a)(1)[(A)](i) does not speak of dismissing one claim in a suit; it speaks of
dismissing ‘an action’ . . . .”). Normally, the Court would require that the dismissal
of claims be memorialized in a separate notice. Fed. R. Civ. P. 41(a)(1)(A)(i). Since
the remainder of Plaintiff’s claims are disposed of through summary judgment
herein, however, the Court will treat the footnote in Defendants’ brief as Plaintiff’s
notice of voluntary dismissal, adopt it, and dismiss these claims without prejudice.
Id. at 41(a)(1)(B) (“Unless the notice or stipulation states otherwise, the dismissal
is without prejudice.”).
The statutes of limitations and/or repose argument is Defendants’ second
affirmative defense. ECF No. 11 at 48 (“Plaintiff’s claims are barred, in whole or
part, by the applicable statute(s) of limitations and/or repose.”). Defendants
withdrew various of their affirmative defenses. ECF No. 18 at 4 n.1. Defendants’
2

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generally ECF No. 18; id. at 22 (seeking summary judgment on “all of
Plaintiff’s claims”). For the reasons set out below, Defendants’ motion will
be granted.
2.

LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, 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; Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A
“genuine” dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court construes all facts
and reasonable inferences in a light most favorable to the nonmovant.
Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016) (citing
Burritt v. Ditlefsen, 807 F.3d 239, 248 (7th Cir. 2015)). In assessing the parties’
proposed facts, the Court must not weigh the evidence or determine
witness credibility; the Seventh Circuit instructs that “we leave those tasks
to factfinders.” Berry v. Chi. Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010)
(citing Anderson, 477 U.S. at 255 and Kodish v. Oakbrook Terrace Fire Prot.
Dist., 604 F.3d 490, 505 (7th Cir. 2010)).
3.

RELEVANT FACTS3
3.1

Hip Implant Surgeries

In approximately 2000 or 2001, Plaintiff began experiencing
significant pain in his left hip. On January 29, 2002, Plaintiff underwent a

remaining affirmative defenses, see ECF No. 11 at 49–59, will not be addressed in
this Order.
The parties submitted a stipulated statement of undisputed facts. ECF No.
19. For purposes of the motion for summary judgment, the Court will adopt those
3

Page 3 of 31

total hip arthroplasty on his left hip, performed by Dr. Michael Welch (“Dr.
Welch”). Plaintiff received a Biomet M2a-38 acetabular shell and a 38-mm
modular femoral head (both manufactured in November 2001), which
consisted of a cobalt chromium metal-on-metal articulation. On February
25, 2003, Plaintiff underwent a total arthroplasty on his right hip, also
performed by Dr. Welch. Plaintiff received a Biomet M2a-38 acetabular
shell (manufactured in January 2003) and a 38-mm modular femoral head
(manufactured in October 2002), which also consisted of a cobalt chromium
metal-on-metal articulation.
3.2

2017 Medical Treatment

In 2016 or 2017, Plaintiff began experiencing bilateral hip abductor
pain. On October 27, 2017, Plaintiff visited Dr. Steven Merkow (“Dr.
Merkow”), an orthopedic surgeon in Wisconsin. Plaintiff reported bilateral
hip and thigh pain associated with “mechanical type noises” sounding like
“metal grinding gears.” Dr. Merkow’s October 27, 2017 office note states
that Plaintiff was “specifically seen today requesting an opinion as to
whether his significant and unrelenting bilateral hip pain is associated with
any prosthetic failure or metallosis.” Plaintiff raised the issue of potential
metallosis with Dr. Merkow, and Plaintiff mentioned his prior cobalt and
chromium blood tests, which his primary care provider had previously
ordered.
Dr. Merkow defined metallosis as follows:
When there [are] two metals that are either articulating or
moving against each other or two metals that are connected
to each other, sometimes there can be [] what’s called fretting
of some of the inherent metal in those pieces, and that can
stipulated facts that are material. The Court has made minor, non-substantive edits
and has omitted citations to the record.

Page 4 of 31

cause – most often may cause some local tissue reaction. Also
it can get into the – at various levels into the bloodstream.
Dr. Merkow also stated that checking for cobalt and chromium metal ion
levels in the bloodstream is how one tests for metallosis. Dr. Merkow
testified that metallosis can cause what is known as a “pseudotumor,”
which he defined as “thickening of [hip] tissue” and the “collection of some
amount of fluid that is encapsulated in [hip] tissue” that “forms as a
reaction to the metal.” He further testified that metal-on-metal hip devices
can cause metallosis and pseudotumors, both of which can be harmful to
patients.
Dr. Merkow testified that his medical notes are (a) always dictated
contemporaneously with his treatment of his patients, including Plaintiff;
(b) true and accurate depictions of what Plaintiff told Dr. Merkow on the
particular date of treatment; and (c) true and accurate depictions of Dr.
Merkow’s impressions of Plaintiff on the particular date of treatment. Dr.
Merkow also testified that it was custom and practice to use the “subjective”
section of his medical notes to record information that Plaintiff reported to
him during a particular visit.
At the October 25, 2017 visit, Dr. Merkow reassured Plaintiff that,
“clinically and radiographically, there is no obvious prosthetic failure noted
on today’s evaluation.” Dr. Merkow’s notes state Dr. Merkow would “also
discuss the matter further with the Biomet representative to determine
whether there are known issues regarding the early prosthetic failure and
metallosis.” Dr. Merkow stated that there was the “potential that
[Plaintiff’s] symptoms are associated with a referred or radicular process of
the lumbar spine.”

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At the October 27, 2017 visit, Dr. Merkow also ordered blood work
to test Plaintiff’s serum cobalt and chromium levels. The results were
reported on October 28, 2017. Plaintiff requested and reviewed the results
of the metal ion testing in November 2017. Plaintiff viewed these results as
abnormal, with cobalt levels that were approximately ten times the
“permissible level.” Specifically, Plaintiff’s chromium levels were 11.6 ug/L
(reference range 0.2 to 0.6 ug/L), and his cobalt levels were 32.3 ug/L
(reference range ≤ 3.9 ug/L). Plaintiff viewed the elevated cobalt levels as a
“serious problem,” but he “wasn’t sure” as of November 2017 whether the
metallosis and cobalt toxicity was caused by his Biomet hip implants.
At some point in 2017, Plaintiff reviewed an article about Boeing
suing Biomet in an action related to a worker’s compensation claim (the
“Boeing Article”). Plaintiff testified that he believes the article was sent to
him given his employment experience in worker’s compensation claims
related to medical devices, for the purposes of assessing whether a similar
strategy of “suing the manufacturer of the device” could be applicable to
one of Plaintiff’s cases. The Boeing Article describes a lawsuit in which
Boeing alleged that Biomet’s M2a hip device was defective and caused
Boeing’s employee to suffer a workplace injury. The Boeing Article
discussed the allegations that the Boeing employee “began experiencing
extreme pain and persistent squeaking of the hip,” with subsequent
revision hip surgery to replace the M2a metal-on-metal implant.
Plaintiff testified that after reading the Boeing Article, he “really
didn’t know” whether his bilateral pain and excessive cobalt and chrome
could have been caused by his M2a hip devices and that while he read the
article in part due to the “audible noise issue” with the M2a hip devices, he
was “more focused” on the potential application of the “subrogation
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strategy” discussed in the Boeing Article to one of the worker’s
compensation cases he was overseeing in connection with his employment.
3.3

2018 Medical Treatment

In February 2018, Dr. Merkow’s office notes indicate that Plaintiff
called Dr. Merkow’s office stating that “he thought [Dr. Merkow’s office]
would be sending him information on metalosis [sic].” The medical note
indicates that Plaintiff also reported having a “metal taste in his mouth and
wondered if that was due to the metal[l]osis.” Dr. Merkow’s office advised
Plaintiff that Dr. Merkow “felt the metal taste in his mouth is not due to
metal[l]osis but may relate to his diabetes.”
In June 2018, Plaintiff had additional metal ion blood levels drawn
to test his cobalt and chromium levels. Plaintiff reviewed the results when
they came in and understood that the results showed that “the levels were
increasing [] significantly.” Specifically, the metal ion results showed that
Plaintiff’s cobalt levels were 50.8 ug/L, compared with 32.3 ug/L in October
2017. Plaintiff believed that the elevated cobalt and chromium “[wa]s
significant” and “couldn’t believe” that his cobalt was that high. Plaintiff
was concerned with the results of the testing because he believed cobalt and
chromium to be “known carcinogens,” and his “biggest concern was and
continues to be” the effect that the cobalt and chromium might have on his
body and organs.
In early December 2018, Plaintiff reached out to the U.S. Food and
Drug Administration (“FDA”) to get information about his hip devices and
the cures, medications, and treatment protocols for his elevated cobalt and
chromium levels. Around that same time, Plaintiff contacted Zimmer
Biomet to find out exactly what M2a devices he had received, to see if there
was a recall related to those devices or any programs offering “replacement
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parts,” and to figure out “whether the products implanted in his body were
defective.” On December 7, 2018, Plaintiff sent Zimmer Biomet his cobalt
and chromium blood test results.
On January 10, 2019, Zimmer Biomet sent Plaintiff a list of the
specific M2a hip devices he had received, identified that the implants were
made out of cobalt and chromium, and included a link to the FDA website
on metal-on-metal hip implants. Plaintiff was “caught off[]guard” by the
fact that his hip devices used non-titanium components, and at that point
he “knew [he] needed to get resolution or a cure to the problem because,
again, [cobalt and chromium] are known carcinogens,” which he viewed as
“a big problem.” Zimmer Biomet referred Plaintiff to its outside counsel.
3.4

January 2019 Medical Treatment and Related Events

In or around January 2019, after receiving the information from
Zimmer Biomet, Plaintiff did additional research about cobalt and
chromium metal poisoning and eventually found an article from the Maglio
Law Firm titled “Cobalt and Chrome Metal Poisoning From Hip
Replacements, What is Considered a High Metal Level?” (the “Maglio
Article”). The Maglio Article specifically claimed that the Biomet M2a hip
devices were defective and caused metallosis, metal poisoning, and
pseudotumors. At the time that Plaintiff read the Maglio Article, Plaintiff
was aware of his metallosis, as illustrated by his prior cobalt chromium
blood test results. Plaintiff sent the Maglio Article to Dr. Merkow’s office at
some point before October 4, 2019, when Dr. Merkow’s office scanned the
article into Plaintiff’s medical record. Plaintiff also later sent part of the
Maglio Article to Dr. Joseph Davies’s (“Dr. Davies”) office on November 15,
2019.

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3.5

February 2019 Medical Treatment

On February 11, 2019, Plaintiff returned to Dr. Merkow for followup regarding bilateral hip and abductor pain, balance issues, and audible
mechanical noises. Dr. Merkow testified that, at this visit, he reviewed
Plaintiff’s prior cobalt chromium studies from October 2017 and June 2018
showing elevated cobalt and chromium levels with Plaintiff, and he
conducted a physical examination of Plaintiff which revealed abductor gait
and abductor weakness. Dr. Merkow concluded at the February 11, 2019
visit that, given Plaintiff’s worsening symptoms and elevated cobalt and
chromium levels, Plaintiff was “headed toward potential revision surgery”4
of the femoral head and liner to get rid of the metal-on-metal articulation,
which Dr. Merkow believed was causing the elevated cobalt and chromium
levels.
Dr. Merkow testified that he advised Plaintiff of his recommendation
for likely revision surgery, including “the fact that those [cobalt and
chromium] levels were going up, his symptoms were likely explained by
that, and this probably will continue to worsen, so now we’re in a stage
where it’s probably better—there is more risk in leaving it alone than the
risks associated with the surgery to change the articulations and hopefully
arrest or lessen the problem of elevated metals.” Also during that February
11, 2019 visit, Dr. Merkow introduced Plaintiff to Dr. Mitch Klement (“Dr.
Klement”), a fellowship-trained orthopedic surgeon in hip and knee
revision arthroplasty, who Dr. Merkow recommended perform any
forthcoming

revision

surgery

on

Plaintiff.

Plaintiff

was

“very

Dr. Merkow defined a “revision surgery” as an operation in which a
prosthetic component “that has had some problem or failure and needs
correction” is removed.
4

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disappointed” that Dr. Merkow was referring him to Dr. Klement, because
he did not think that Dr. Klement was qualified to perform the revision
surgery.
Also at the February 11, 2019 visit, Dr. Merkow recommended a
MARS MRI scan to determine whether Plaintiff had any pseudotumors in
his hips, which would have a “high likelihood” of being caused by the
metal-on-metal hip devices.

The MRI—taken on February 13, 2019—

indicated that Plaintiff had bilateral soft tissue damage on both hips, with
“fluid distended pseudocapsules bilaterally with thickened and irregular
synovial walls.” Dr. Merkow testified that the MRI results reaffirmed his
recommendation that Plaintiff undergo revision surgery.
3.6

April 2019 Medical Treatment

Plaintiff returned to Dr. Merkow on April 19, 2019. Dr. Merkow
reported in the visit notes that Plaintiff continued to have ongoing balance
issues, pain, and weakness in both hips, and that Plaintiff “ha[d] become
progressively more frustrated with his hip pain and balance problems.” Dr.
Merkow testified that he discussed the results of the February 13, 2019
MARS MRI with Plaintiff during this visit, including informing Plaintiff
that his bilateral pseudotumors were “consistent with typical metal-onmetal pseudotumors/pseudocapsules” and that it was “extremely likely
that it’s the metal-on-metal [devices] and the reaction that it’s causing
because of the metallosis.” Plaintiff testified that he does not recall
discussing the results of the February 2019 MARS MRI. At the April 19, 2019
visit, Dr. Merkow reported that Plaintiff “ha[d] extensively researched
these issues,” had “contacted Biomet,” and “wonder[ed] next steps.”
Dr. Merkow diagnosed Plaintiff with metallosis and pseudotumors
from Plaintiff’s bilateral metal-on-metal hip devices, as confirmed by the
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previous metal ion testing and MARS MRI. Dr. Merkow also concluded that
Plaintiff’s abductor weakness was likely related to Plaintiff’s metallosis and
pseudotumors. Dr. Merkow recommended that Plaintiff “strongly
consider” proceeding with revision surgery as soon as possible to “slow or
arrest the problem that was occurring and to hopefully prevent damage
that couldn’t be . . . more easily corrected.” Dr. Merkow also advised
Plaintiff of the risks and benefits of revision surgery in Plaintiff’s case.
Plaintiff reported to Dr. Merkow that he was “thinking about having
[the revision surgery] done in September 2019, after his daughter’s
wedding.” At the April 19, 2019 visit, Dr. Merkow again referred Plaintiff
to Dr. Klement and encouraged Plaintiff to see Dr. Klement “as soon as
possible.” Plaintiff testified that after Dr. Merkow recommended that Dr.
Klement perform any revision surgery, Plaintiff “blanked out,” and he
“shut down” because he was angry at being referred to a doctor whom
Plaintiff did not view as qualified. After finding out that Dr. Merkow would
not do the revision surgery, Plaintiff decided that he ”wasn’t going to have
any more treatment done through that group.” Plaintiff did not follow up
with Dr. Merkow or Dr. Klement to schedule revision surgery.
3.7

Treatment with Dr. Davies

On November 7, 2019, Plaintiff reached out to Dr. Davies’s office to
ask whether he could perform bilateral hip revision surgery on Plaintiff.
Plaintiff had learned of Dr. Davies from previously having contacted a local
Wisconsin attorney who had recommended Dr. Davies as a surgeon who
did “the type of surgery [Plaintiff] needed.” Plaintiff reported to Dr.
Davies’s office that he had bilateral hip pain that had been going on for 25
years.

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On October 12, 2020 and February 28, 2021, Dr. Davies revised
Plaintiff’s left and right hips, respectively. Dr. Davies removed the M2a
cobalt chromium metal-on-metal articulation from both hips.
3.8

Plaintiff’s Lawsuit

On November 17, 2022, Plaintiff filed this action against Biomet.
Plaintiff alleges that the M2a hip implants used in his total hip replacement
surgeries were defective and caused him personal injury—specifically,
pain, metallosis, metal toxicity, pseudotumors, and tissue necrosis, among
other economic and non-economic injuries. Plaintiff seeks damages for
medical expenses and inhibited quality of life dating all the way back to
2002.
4.

ANALYSIS
Defendants move for summary judgment on the basis that Plaintiff’s

claims are time-barred under Wisconsin’s three-year statute of limitations
period for personal injury actions, or in the alternative under Wisconsin’s
fifteen-year statute of repose for strict liability product liability claims. ECF
No. 18 at 6–21. The parties dispute when Plaintiff truly discovered the cause
of his injuries and accordingly when Wisconsin’s statute of limitations for
filing a personal injury suit began to run. See generally id.; ECF No. 26 at 4–
13. They also dispute whether Plaintiff’s injuries constitute a “latent
disease” under Wisconsin products liability law and accordingly whether
his claims are barred by the statute of repose. ECF No. 26 at 11–12; ECF No.
27 at 19–22. The Court examines each issue in turn. For the reasons
discussed below, the Court finds for Defendants on both of these issues and
will grant their motion for summary judgment.

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4.1

Statute of Limitations

Defendants argue that the undisputed facts in this case show that
Plaintiff “knew or should have known of both his injuries and their likely
connection to his Biomet M2a hip devices as early as January 2019, and in
any event no later than November 15, 2019.” ECF No. 18 at 5 (citing Wis.
Stat. Ann. § 893.54). They contend that “[a]ny one of these dates was
sufficient to trigger the [commencement of the three-year] statute of
limitations under Wisconsin law,” and because Plaintiff waited to file suit
until November 17, 2022, his claims are time-barred. Id. at 22.
Wisconsin law5 provides that any personal injury claim must be
brought within three years of the claim’s accrual. Wis. Stat. § 893.54(1m)(a).
A claim accrues when “the plaintiff discovers, or in the exercise of
reasonable diligence should have discovered, not only the fact of injury but
also that the injury was probably caused by the defendant’s conduct or
product”—often referred to as the discovery rule. Borello v. U.S. Oil Co., 388
N.W.2d 140, 146 (Wis. 1986).
Critically, the discovery rule requires that the plaintiff “‘discovers
both the nature of his or her injury and its cause,’ so that ‘the relationship
between the injury and its cause [is] more than a layperson's hunch or
belief.’” Karnes v. C. R. Bard, Inc., No. 18-cv-931-wmc, 2019 WL 1639807, at
This suit proceeds on diversity jurisdiction. See ECF No. 5 at 2–5; see also
28 U.S.C. § 1332(a). Accordingly, the Court applies the substantive state law of its
locality under the Erie Doctrine. See Land v. Yamaha Motor Corp., 272 F.3d 514, 516
(7th Cir. 2001) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). Statutes of
limitations are considered substantive state law in the Seventh Circuit. See
Hollander v. Brown, 457 F.3d 688, 694 (7th Cir. 2006) (citing Walker v. Armco Steel
Corp., 446 U.S. 740, 751–53 (1980) and Wade v. Danek Med., Inc., 182 F.3d 281, 289
(4th Cir. 1999)); see also Guar. Tr. Co. v. New York, 326 U.S. 99, 110 (1945). The Court,
therefore, will apply the Wisconsin statute of limitations governing personal
injury suits.
5

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*3 (W.D. Wis. Apr. 16, 2019) (quoting S.J.D. v. Mentor Corp., 463 N.W.2d 873,
875 (Wis. Ct. App. 1990)). Accordingly, “the relevant inquiry is on the
strength and the nature of the connection between the defendant’s conduct
and the injury as reflected in the facts known to the claimant.” Mentor, 463
N.W.2d at 876. More specifically, the plaintiff must have an “objective basis
for determining that the defendant had a role in causing his or her injuries.”
Id. at 877 (emphasis omitted). When this occurs, the plaintiff has three years
therefrom to sue for his injury. Importantly, “the discovery rule does not
defer claim accrual until a plaintiff decides to see a lawyer to learn whether
[]he has a legally viable claim.” Henley v. C.R. Bard, Inc., No. 14-C-0059, 2019
WL 6529433, at *5 (E.D. Wis. Dec. 4, 2019) (citing AM. L. OF PRODS. LIAB. 3d
§ 47.40). Rather, the limitations period begins to run when the plaintiff
knows the “operative facts of h[is] claim.” Id.
4.1.1

Injury

Defendants first argue that Plaintiff knew of the injuries that he
attributes to Defendants’ hip implant devices—“bilateral hip pain, metal
toxicity, metallosis, pseudotumors, and tissue necrosis”—more than three
years before filing the complaint, as shown by several actions he undertook
or information he learned between October 2017 and April 2019. ECF No.
18 at 10–14. Plaintiff first sought medical assistance in October 2017 for hip
pain. Id. at 11 (citing ECF No. 19 at 2–4). In November 2017, he learned that
he had severely elevated cobalt and chromium blood levels and regarded
them as worrisome; he received confirmation of further increases in cobalt
and chromium levels through testing in June 2018. Id. (citing ECF No. 19 at
4). Plaintiff learned from Biomet in January 2019 that his implants were a
cobalt and chromium metal-on-metal device, and at that time he viewed his

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high cobalt and chromium levels as problematic. Id. at 11–12 (citing ECF
No. 19 at 7). By that time, Plaintiff was also aware of his metallosis. Id. at 11.
In February 2019, Plaintiff received an MRI that showed soft tissue
damage and pseudotumors in his hips. Id. at 12 (citing ECF No. 19 at 9). Dr.
Merkow informed Plaintiff in April 2019 that, based on the MRI results, it
was “extremely likely” that these pseudotumors stemmed from his hip
implant. Id. (citing ECF No. 19 at 10). For this reason, Dr. Merkow
recommended that Plaintiff pursue revision surgery. Id. at 13 (citing ECF
No. 19 at 11). All of these occurrences, Defendants argue, gave Plaintiff
“objective” confirmation of his injuries (if not their full scope), and all took
place before the three-year limitations period began to run. Id. at 12–13 &
n.6 (citing Henley, 2019 WL 6529433, at *5 and Borello, 388 N.W.2d at 142–
43).
Plaintiff suggests in opposition that he was not sufficiently aware of
his injuries to trigger the commencement of the limitations period. ECF No.
26 at 6–8. Specifically, he argues that his elevated cobalt and chromium
blood levels were not an injury in themselves sufficient to trigger
commencement of the limitations period, and that “prior to 2019,” his
medical providers did not definitively attribute those levels or his other
medical complaints to his hip devices. Id. at 6. He also notes that there is no
basis to conclude that he found out about his pseudotumors and soft tissue
injuries “prior to 2019.” Id. at 6–7.
It is beyond dispute that Plaintiff was aware of his injuries at the very
latest, in April of 2019. He concedes that he “became objectively aware that
his elevated chromium and cobalt levels might be associated with his hip
implant” in January 2019. ECF No. 26 at 6 (citing ECF No. 19 at 7). He
stipulated that, “[i]n or around January 2019, . . . [he] was aware of his
Page 15 of 31

metallosis . . . .” ECF No. 19 at 7–8. Although Plaintiff claims not to
remember Dr. Merkow reporting to him in April 2019 that the MRI results
showed that he had pseudotumors, Plaintiff stipulated to having been
diagnosed at that time with pseudotumors. Id. at 10 (citing ECF No. 20-1 at
150 (Plaintiff testifying that he had “no reason to question” Dr. Merkow
having made this diagnosis in April 2019)). Plaintiff simply has no evidence
to rebut the conclusion that he knew, or had reason to know, of the injuries
he complains of in this lawsuit at some point in the first half of 2019, which
was more than three years before he sued.
4.1.2

Causation

The inquiry does not end with Plaintiff’s knowledge of his injuries,
of course—but the Court further finds that Plaintiff “discover[ed], or in the
exercise of reasonable diligence should have discovered, . . . that the injury
was probably caused by the defendant’s conduct or product” more than
three years before filing suit. Borello, 388 N.W.2d at 146.
Defendants argue that the undisputed facts show that Plaintiff had
an “objective basis” to draw a causal link between the hip implants and his
injuries “by January 2019, and no later than November 15, 2019.” ECF No.
18 at 14–20; ECF No. 27 at 6. They note that records from Plaintiff’s October
2017 visit with Dr. Merkow indicate that Plaintiff “suspected that his hip
pain might be caused by either ‘prosthetic failure or metallosis.’” ECF No.
18 at 14 (citing and quoting ECF No. 19 at 2–3). Furthermore, in 2017,
Plaintiff read the Maglio Article, which discussed a lawsuit alleging that
Biomet hip implants like his failed and caused similar injuries. Id. at 15
(citing ECF No. 19 at 4–5). Then, in January 2019, he sent the Maglio Article
to Dr. Merkow and Dr. Davis for consideration in his own medical
situation. Id. at 17 (citing ECF No. 19 at 8). Defendants argue that these facts
Page 16 of 31

alone are sufficient to trigger the commencement of the limitations period.
Id.
Defendants further contend that Plaintiff knew or should have
suspected that his hip implants were the likely cause of his injuries because
he both sought and received information from the FDA, Biomet, and Dr.
Merkow between December 2018 and April 2019 regarding the potential of
his hip implants being defective and causing his elevated cobalt and
chronium levels. Id. at 15–17. In particular, Defendants point to the
February and April 2019 meetings with Dr. Merkow in which Plaintiff’s
MRI results were reviewed and revision surgery was recommended. Id. 17–
18 (citing ECF No. 19 at 8–11). Defendants point out that Plaintiff conceded
knowing that “the products implanted in his body caused injury” at the
very least when his medical providers recommended removal. Id. at 18
(quoting ECF No. 19 at 13). Since Dr. Merkow recommended revision
surgery to Plaintiff in April 2019 at the latest, Defendants argue that
Plaintiff himself has conceded his awareness of causation by that time. See
id. at 18–19 (citing ECF No. 19 at 11). Finally, Defendants contend that as of
November 15, 2019, Plaintiff “was aware of a potential legal claim related
to his M2a devices and the need for revision surgeries” because he “had
already contacted an attorney, who referred plaintiff to Dr. Davies for
revision surgery.” Id. at 19 n.11 (citing ECF No. 19 at 12). Finally,
Defendants argue that Plaintiff’s declining to pursue the recommended
revision surgeries until 2020 and 2021 does not toll the limitations period.
Id. at 19.
In

response,

Plaintiff

argues

that

summary

judgment

is

inappropriate because there are genuine disputes of material fact with
respect to whether his “January and April 2019 consultations with Dr.
Page 17 of 31

Merkow provided a sufficient objective basis for [him] to understand that
his hip complaints were related to his hip implants.” ECF No. 26 at 2. First,
as detailed earlier, Plaintiff argues that, although he may have known of his
injuries in 2019, he did not have an objective basis to believe that
Defendants’ devices caused those injuries until later6 because his providers
suggested that other medical causes were perhaps to blame for his
symptoms. Id. at 6–8. Somewhat confusingly, however, Plaintiff concedes
that he “became objectively aware” that his elevated chromium and cobalt
levels “might be associated” with his hip implants in January 2019, when
he found out that his implants were made of those same materials. Id. at 6
(citing ECF No. 19 at 7). He does not develop an explicit argument as to
why this apparent concession does not defeat summary judgment.
Plaintiff next argues that Defendants’ contentions rely on material
that is unreliable and/or inadmissible, namely, (1) Dr. Merkow’s
“recollection,” or lack thereof, “of his medical advice to Plaintiff in 2019”
and (2) Plaintiff’s medical records, which for the most part “are silent with
respect to whether [Dr. Merkow] actually communicated with Plaintiff with
respect to his impressions or diagnoses.” Id. at 8–10.
Plaintiff argues that to conclude that Dr. Merkow’s medical
impressions or diagnoses provided a sufficient basis for Plaintiff to know
that the hip devices were the likely cause of his injuries, there would have
to be incontrovertible testimony or evidence that Dr. Merkow in fact

Plaintiff does not stake a claim as to when he did become aware or have
reason to suspect that that Defendants’ devices caused his injuries, even
suggesting at one point that having revision surgeries in 2020 and 2021 did not
commence the limitations period. Id. at 5 (citing In re Smith & Nephew Birmingham
Hip Resurfacing (BHR) Hip Implant Prod. Liab. Litig., No. 1:17-MD-2775, 2018 WL
6067505, at *3 (D. Md. Nov. 19, 2018), aff’d, 781 F. App’x 350 (4th Cir. 2019)).
6

Page 18 of 31

communicated all of those impressions or diagnoses to Plaintiff. Id. at 9.
But, Plaintiff states, “Dr. Merkow testified . . . that he has no personal
recollection of communicating the information in his medical records to
Plaintiff, and he testified that it was only to the ‘best of his recollection’ that
the advice reflected in the medical records was actually communicated to
Plaintiff.” Id.
Plaintiff argues that because Dr. Merkow does not consistently
recall, and Plaintiff himself does not recall at all, such communications
having taken place, Defendants have failed to meet their summary
judgment burden. Id. He asserts that “[a]t best, this is a case of ‘no
recollection’ vs. ‘no recollection’” and therefore summary judgment is
inappropriate because only a jury can determine who is more credible. Id.
at 8–9 (citing and distinguishing Mucha v. Village of Oak Brook, 650 F.3d 1053,
1056 (7th Cir. 2011)); see also id. at 10 (arguing that the Court should not
“grant Defendants any inferences that Dr. Merkow’s diagnosis was
communicated to Plaintiff” because Plaintiff testified that he does not recall
Dr. Merkow’s advice and that “he could not reconcile his subsequent
actions with . . . having received the advice identified in the [medical]
records” (citing ECF No. 20-1 at 149–51)).
Further, Plaintiff argues that medical records of his interactions with
Dr. Merkow are unreliable because Dr. Merkow testified inconsistently as
to how soon after a patient interaction he records his notes. Id. at 8 (citing
ECF No. 20-4 at 9–10). In a footnote, Plaintiff also argues that medical
records of Plaintiff’s interactions with Dr. Merkow, to the extent those
records are offered to prove “whether and to what degree he communicated
his diagnosis to Plaintiff,” are inadmissible hearsay. Id. at 9 n.2 (citing Fed.

Page 19 of 31

R. Evid. 803(4) and (6) and Cook v. Hoppin, 783 F.2d 684, 689–90 (7th Cir.
1986)).
4.1.2.1

Reliability and Admissibility

The Court takes up Plaintiff’s arguments in reverse order. First,
Plaintiff’s arguments that the evidence of Plaintiff’s interactions with Dr.
Merkow is unreliable or inadmissible—and therefore cannot support
summary judgment for Defendants—are unavailing.
As a threshold matter, in furtherance of his assertion of unreliability,
Plaintiff improperly cites to evidence outside the parties’ joint statement of
facts, which is inconsistent with the letter and the spirit of the Court’s
pretrial procedures order and the applicable local rule. ECF No. 9 at 4
(“[T]he Court will only consider the single, agreed-upon statement of facts.
Any disputed facts must be itemized separately and supported by each
party’s separate pinpoint citation to the record.”); Civ. L.R. 56(b)(6)
(“Assertions of fact in the parties’ supporting memoranda must refer to the
corresponding numbered paragraph of the statement of facts, statement of
additional facts, or statement of stipulated facts.”). Plaintiff had notice of
these requirements for nearly a year before dispositive motions were due,
see ECF Nos. 9 and 14, and he had an opportunity to lay out any disputes
of fact when the parties were preparing their joint statement of facts, but he
neglected to do so. That he fishes into the record only in his briefing
suggests that his portrayal of the record evidence lacks merit (and perhaps
that his counsel lacked attention to proper procedure).
For the sake of complete analysis, the Court considers the record
evidence that Plaintiff has pointed to in support of his position that Dr.
Merkow’s testimony is unreliable, and it finds the evidence unpersuasive
on that score. Plaintiff’s assertion that Dr. Merkow testified that “he had no
Page 20 of 31

personal recollection of any of his conversations with Plaintiff” or of
“communicating the information in his medical records to Plaintiff,” ECF
No. 26 at 8–9, mischaracterizes the record. The relevant testimony states as
follows:
[Q by Plaintiff’s counsel]: I want to reflect on what you
mentioned earlier today, that you do not have any significant
recollection of any conversations with [Plaintiff] outside of
those medical records; is that correct? .
[Defendants’ counsel] Object to form. Foundation. . . .
A: I do not recall any conversations with [Plaintiff] outside of
our office conversations and . . . telephone. . . .
Q: . . . [J]ust to reflect what you just said, you don’t recall any
significant conversations with [Plaintiff] outside of those
records. So opposing counsel has been asking you what you
remember about each one of these specific visits, these
specific dates of treatment, and I want to be clear that your
recollection really just comes from what is in your medical
records; is that right?
[Defendants’ counsel] I’m going to object to form,
foundation, and misstates testimony.
A: Correct.
ECF No. 27-2 at 20–21.7
This testimony does not establish, as Plaintiff insists, that Dr.
Merkow testified that he had no recollection at all of any of his
conversations with Plaintiff; to the contrary, Dr. Merkow averred that he
Plaintiff cites to “Ex. D, 74:1–9,” the deposition transcript of Dr. Merkow,
which was appended in part to Defendants’ moving papers at ECF No. 20-4. ECF
No. 26 at 8. However, that version of the transcript is abridged and does not
include transcript page 74—an omission that Plaintiff fails to mention. See ECF No.
20-4 at 56–57. Defendants included the full transcript of Dr. Merkow’s deposition
with their reply brief. ECF No. 27-2. The Court cites to pages 72–74 of the full
transcript, which includes the specific lines Plaintiff has referenced, the lines that
Defendants referenced in reply, ECF No. 27 at 10, and additional context.
7

Page 21 of 31

did recall conversations with Plaintiff in his office and via telephone.
Plaintiff also attempts to minimize Dr. Merkow’s statement that his medical
records reflected his care and treatment of Plaintiff “only . . . ‘to the best of
[his] recollection.’” ECF No. 26 at 8 (quoting ECF No. 27-2 at 7) (emphasis
added). At best, Plaintiff has pointed out that Dr. Merkow placed a qualifier
on the strength of his memory. But this testimony is simply not evidence
that Dr. Merkow had no memory of his interactions with Plaintiff.
This testimony also does not establish that Dr. Merkow’s
“recollection was tied exclusively to what he was reading in his medical
records,” id.—that assertion came from Plaintiff’s counsel over Defendants’
counsel’s objection. Other testimony shows that Dr. Merkow refreshed his
recollection of his conversations with Plaintiff and prepared for his
deposition by reviewing Plaintiff’s medical records, not that he lacked an
independent recollection of those records. ECF No. 27-2 at 5 (“I reviewed
this case, my medical records . . . .”); id. at 6 (“Upon reading my notes, that
jogged my memory of him.”). Plaintiff makes no claim that doing so was
impermissible under Federal Rule of Evidence 612 or any other rule.
Finally, this testimony does not establish that Dr. Merkow does not
recall communicating his insights and diagnoses to Plaintiff, either in
general or specifically on April 19, 2019. Plaintiff testified that he does not
recall having discussed his February 2019 MRI results with Dr. Merkow.
ECF No. 19 at 10 (citing ECF No. 20-1 at 145–46). Dr. Merkow testified that
he does recall his encounters with Plaintiff, or at least that at the April 19,
2019 appointment, he recalls reviewing the results of Plaintiff’s February
2019 MRI and sharing his assessment that the hip devices were causing
Plaintiff’s concerns. Id. (referencing ECF No. 27-2 at 17–18 (“A: So when you
see [bilateral pseudotumors] and there are metal-on-metal articulations of
Page 22 of 31

the hip joint . . . , one can make the assumption that it is extremely likely
that it’s the metal-on-metal implant and the reaction that it’s causing
because of the metallosis. Q: Okay. Did you share that information with
[Plaintiff] during the April 19[], 2019, visit? A: I’m quite sure I did.”)).
This is, therefore, not “a case of ‘no recollection’ vs. ‘no recollection,’”
as Plaintiff urges. ECF No. 26 at 9. Neither Plaintiff’s testimony that he does
not recall Dr. Merkow telling him that the hip devices were causing
Plaintiff’s complaints, nor the difference between Dr. Merkow’s and
Plaintiff’s respective testimony, is sufficient to raise a genuine dispute of
material fact. Mucha, 650 F.3d at 1056 (finding that the plaintiff’s testimony
that he “could not recall” whether or when he informed a defendant of a
material fact was “inconclusive” and therefore insufficient “by itself [to]
create a genuine factual dispute” (citing Steinhauer v. DeGolier, 359 F.3d 481,
485 n.1 (7th Cir. 2004) and Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.
2001))). At most, Plaintiff has shown “some metaphysical doubt as to the
material facts,” but this is not enough to defeat summary judgment. Burton
v. Kohn Law Firm, S.C., 934 F.3d 572, 579 (7th Cir. 2019) (quoting Siegel v.
Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010)).8

Plaintiff’s argument that his medical records are inadmissible to prove
“whether and to what degree [Dr. Merkow] communicated his diagnosis to
Plaintiff,” ECF No. 26 at 9 n.2, is perfunctory and underdeveloped to the point of
waiver. Harmon v. Gordon, 712 F.3d 1044, 1053 (7th Cir. 2013) (“We have often said
that a party can waive an argument by presenting it only in an undeveloped
footnote . . . .” (citing Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 924 (7th
Cir. 2012) and Long v. Teachers’ Ret. Sys. of Ill., 585 F.2d 344, 349 (7th Cir. 2009)).
8

Even if Plaintiff had properly developed this argument, it does not change
the Court’s conclusion that—independently of what the medical records show—
Dr. Merkow’s testimony shows that he informed Plaintiff of the relevant medical
information, and Plaintiff has no genuine dispute of fact on this front.

Page 23 of 31

4.1.2.2

Objective Basis

With Plaintiff’s arguments as to the reliability of Dr. Merkow’s
testimony addressed, the Court returns to his more fundamental argument:
that the facts do not show that Plaintiff had an objective basis to believe that
Defendants’ devices caused his injuries until sometime after November
2019, making his suit timely. This argument also fails. The undisputed facts
make clear that, for quite some time before filing suit, Plaintiff believed that
Defendants’ hip devices caused his injuries. Dating back to 2017, Plaintiff
sought out Dr. Merkow’s medical assistance for hip pain; his medical
records reflect that he believed that the pain was caused by either
“prosthetic failure or metallosis.”9 ECF No. 19 at 3. Moreover, in April 2019

Irrespective of whether Plaintiff’s medical records are admissible to prove
that Dr. Merkow communicated his diagnoses to Plaintiff, see supra note 8, the
diagnoses therein are admissible under Rule 803(6). LaBrec v. Wis. & S. R.R. Co.,
No. 17-CV-828-JDP, 2019 WL 325131 (W.D. Wis. Jan. 25, 2019) (“Courts routinely
admit medical records under Rule 803(6) . . . .” (collecting cases)).
9

The medical records were made by Dr. Merkow, “someone with
knowledge” of the “act, event, condition, opinion, or diagnosis” recorded. Fed. R.
Evid. 803(6), (6)(A). Plaintiff has not argued, and the Court has no basis to believe,
that these medical records were not “kept in the course of a regularly conducted
activity of a[n] . . . occupation” nor that “making the record was [not] a regular
practice of that activity.” Id. at 803(6)(B)–(C). And the records were certified as
authentic. ECF No. 27 at 13 n.6 (citing ECF No. 27-3 (Certification of Records)).
Finally, the records were “made at or near the time” of the “act, event,
condition, opinion, or diagnosis” and have no indicia of untrustworthiness. Fed.
R. Evid. 803(6), (6)(A), 6(E). Plaintiff’s argument that Dr. Merkow’s medical
records are untrustworthy because he testified inconsistently as to whether he
typically recorded such notes “contemporaneously” with a patient interaction or
“the same date” as the interaction is unpersuasive. ECF No. 26 at 8 (referencing
ECF No. 27-2 at 7). Plaintiff cites no authority in support of the assertion that notes
taken hours after a patient interaction, rather than contemporaneously therewith
or sooner after, are inherently untrustworthy. See id. But even assuming that Dr.
Merkow records patient notes later in the same day as a patient encounter (as
opposed to contemporaneously), the Court does not find that the passage of a

Page 24 of 31

at the latest, Plaintiff learned information from Dr. Merkow that confirmed
this connection, at which time Dr. Merkow also recommended revision
surgery. See ECF No. 19 at 13 (“Plaintiff avers that he ‘did not know the
products implanted in his body caused injury until his medical providers
recommended removal[,] [t]he timeframe for [which is] reflected in
Plaintiff’s medical records.”). Even if Plaintiff does not recall learning this
information, he may not “employ an ‘ostrich defense,’ closing [his] eyes to
reasonably accessible information and refusing to investigate his suspicions
of a potential injury.” Waterstone Mortg. Corp. v. Offit Kurman P.A., No. 19CV-1117-JPS, 2020 WL 1066788 (E.D. Wis. Mar. 5, 2020) (citing Sands v.
Menard, 887 N.W.2d 94, ¶ 63 (Wis. Ct. App. 2016)).
What’s more, Plaintiff didn’t really bury his head in the sand at all;
the record shows that he did his own investigation of his injuries and their
likely cause. Plaintiff essentially concedes that, through his own outreach
in December 2018 and January 2019 to Zimmer Biomet about his hip
devices, he became aware that those hip devices were the likely cause of his
elevated cobalt and chromium blood levels and realized that he needed
“resolution or a cure” for the issue. ECF No. 19 at 7. Even if the information
that Plaintiff had as of January 2019 can be characterized as an
“unsubstantiated lay belief,” which “is not sufficient for discovery to
occur,” Clark v. Erdmann, 468 N.W. 2d 18, 25 (Wis. 1991), there is no genuine
dispute that Plaintiff attained an objective basis to believe that the hip
devices were causing his injuries in April 2019, when Dr. Merkow
short amount of time makes those notes less trustworthy. See United States v. Lewis,
954 F.2d 1386, 1394 (7th Cir. 1992) (“Although the delay between Lewis’s
statements and Jones’s interview was significant—approximately six months—we
cannot say that the interval was so long that Jones could not have accurately
recalled Lewis’s statement during the interview.”).

Page 25 of 31

recommended that they be removed through revision surgery. At that time,
Plaintiff reported to Dr. Merkow that he was “thinking” about having the
revision surgery done at a specific time. ECF No. 19 at 11. The facts that
Plaintiff learned or should have learned from Dr. Merkow in April 2019,
and his expressed interest in and timeline for receiving revision surgery,
created a “reasonable likelihood for an objective belief as to an injury and
its cause.” Clark, 468 N.W. 2d at 25; see also Borello, 388 N.W.2d 140 at 142,
149 (limitations period commenced when plaintiff received information
from medical practitioner that confirmed her hunch that her injuries were
caused by defendant’s furnace system).
As Defendants point out, even if Dr. Merkow earlier gave alternative
explanations of Plaintiff’s injuries, Plaintiff has failed to put forth evidence
that he himself ever believed those alternative explanations or relied on
them. ECF No. 27 at 16 (“Plaintiff never even argues or puts forth any
evidence . . . that he subjectively thought or was told that his injuries were
caused by something other than the Biomet [d]evices in early 2019.”); see
Clark, 468 N.W. 2d at 26 (holding that the plaintiff’s suit was untimely based
on when her original doctors informed her of a causal link between a failed
surgery and her injury); cf. Hansen v. A.H. Robins, Inc., 335 N.W.2d 578, 583
(Wis. 1983) (holding that plaintiff’s suit was timely because she was initially
misinformed by her doctor that there was no causal link between the
defendant’s product and her injury, and the statute of limitations
accordingly did not begin to run until she was properly informed). To the
contrary, Plaintiff himself theorized all along that Defendants’ hip devices
were causing his medical problems, and in April 2019 received
confirmation

of

that

theory

when

Dr.

Merkow

unambiguously

recommended revision surgery. Cf. Mentor, 463 N.W.2d at 876–77
Page 26 of 31

(limitations period commenced with exploratory surgery on plaintiff’s
defective prosthetic because plaintiff’s doctor had made ambiguous
statements about the cause of his injuries in prior consultations); see also
Henley, 2019 WL 6529433 at *5 (limitations period commenced when
plaintiff learned from her doctor merely that her inferior vena cava filter
had caused her some form of injury, thus barring her untimely personal
injury claim).10
For all these reasons, the Court finds that Plaintiff has not adduced
evidence “on which the jury could reasonably find” that he lacked
knowledge sufficient to trigger commencement of the limitations period.
Delta Consulting Grp., Inc. v. R. Randle Constr., Inc., 554 F.3d 1133, 1137 (7th
Cir. 2009) (citing Springer v. Durflinger, 518 F.3d 479, 483–84 (7th Cir. 2008)).
The statute of limitations on Plaintiff’s claims against Defendants began to
run in April 2019 at the latest. Because Plaintiff filed suit against Defendants
on November 17, 2022, his claims are time-barred.
4.2

Statute of Repose

Wisconsin’s statute of repose bars product liability suits filed fifteen
years or more after the injurious product was manufactured, unless the
injury in question qualifies as a latent disease. Wis. Stat. § 895.047(5). The

Defendants also note that Plaintiff at times suggests in his briefing that
commencement of the limitations period depends on Plaintiff having “objective
evidence that his Biomet Devices were ‘defective’” in a legal sense, ECF No. 27 at
8 (citing ECF No. 26 at 6–7, 9), and argue that this misstates the legal standard. The
Court agrees with Defendants. But in any event, the undisputed facts show that
Plaintiff reached out to an attorney about his injuries, and at that attorney’s
recommendation reached out to Dr. Davies to inquire about hip revision surgery
on November 7, 2019. ECF No. 19 at 12. This action makes clear that, at that point—
three years and ten days before filing suit—Plaintiff had the “operative facts” of a
legal claim related to his hip devices. Henley, 2019 WL 6529433, at *5 (citation
omitted).
10

Page 27 of 31

Seventh Circuit considers state statutes of repose to be applicable
substantive state law under the Erie Doctrine. See Jaurequi v. John Deere Co.,
986 F.2d 170, 172–73 (7th Cir. 1993) (“[A] court must apply the law of the
state with the most significant relationship to the particular substantive
issue. The Second Restatement rule specifically dictates that ‘in an action
for personal injury, the local law of the state where the injury occurred
determines the rights and liabilities of the parties, unless, with respect to
the

particular

issue,

some

other

state has

a

more

significant

relationship . . . .’”) (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS
§ 146 (1979)). As the underlying events of this suit occurred in Wisconsin,
see generally ECF No. 5 at 2–5, the Court must apply the Wisconsin statute
of repose.
Defendants argue that the statute of repose bars Plaintiff’s strict
liability claims, as Plaintiff’s hip implants and their component parts were
manufactured in 2003 at the latest—well over fifteen years before Plaintiff’s
suit—and that the “latent disease” exception does not apply. ECF No. 18 at
20–21; ECF No. 27 at 19–20. As both parties note, the issue of whether
injuries caused by an implanted medical device constitute a latent disease
has never been addressed in Wisconsin state courts. ECF No. 26 at 10; ECF
No. 27 at 19.
Defendant argues that federal district court decisions applying
North Carolina state law provide the proper framework. ECF No. 27 at 19–
20. These authorities generally hold that symptoms or physical injuries
induced by a medical implant are not latent diseases, as they are individual
phenomena linked to one cause—the implantation of a medical device—as
opposed to a progressive disease lying in wait. See In re Cook Med., Inc., IVC
Filters Mktg., Sales Pracs. & Prod. Liab. Litig., No. 1:14-ML-02570-RLY-TAB,
Page 28 of 31

2023 WL 7548281, at *3 (S.D. Ind. July 10, 2023) (declining to apply latent
disease exception because plaintiff’s injuries stemmed from a single,
discrete malfunction in her vena cava filter); Fulmore v. Johnson & Johnson,
581 F. Supp. 3d 752, 758 (E.D.N.C. 2022) (denying that plaintiff’s injuries
constituted a latent disease because they were a collection of discrete
symptoms from a faulty medical device and not a true disease).
Plaintiff argues that his injuries—pseudotumors and soft tissue
damage stemming from metal contamination—qualify as a latent disease
under Wisconsin state law, in that these injuries were part of a “disease
process” and are physical pathologies that were not immediately obvious
at the time they began. ECF No. 26 at 10–12 (citing Wilder v. Amatex Corp.,
336 S.E.2d 66, 72 (N.C. 1985)).
The Court agrees with Defendants; Plaintiff’s injuries do not qualify
as a latent disease. His hip weakness, pseudotumors, metallosis, and other
symptoms were all readily identifiable, discrete physical injuries “arising
from [the] placement of a single medical device.” Cook, 2023 WL 7548281, at
*3. Furthermore, the latent disease exception is typically “limited to
diseases that develop over long periods of time after multiple exposures to
offending substances which are thought to be causative agents, [and] where
it is impossible to identify any particular exposure as the first injury.” Id.
(quoting In re Mentor Corp. ObTape Transobturator Sling Prods. Liab. Litig.,
No. 4:08-MD-2004, 2016 WL 873854, at *2 (M.D. Ga. Mar. 4, 2016)) (internal
citations omitted). The archetypal example is asbestosis. Id. (citing Wilder,
336 S.E.2d at 73). In Plaintiff’s situation, it is possible to identify a single
exposure to the causative agent—the installation of the hip implants in 2002
and 2003. ECF No. 19 at 2. Plaintiff’s injuries stem from the discrete
installment of the hip implants. Accordingly, Plaintiff’s injuries are not a
Page 29 of 31

latent disease. Moreover, the hip implants were manufactured more than
fifteen years before November 2022. Id. For all these reasons, Plaintiff’s
strict liability claims are time-barred under Wisconsin’s statute of repose,
and the latent disease exception does not apply.
4.3

Punitive Damages

The Court will address Plaintiff’s punitive damages claim in the
interest of completeness. ECF No. 5 at 32. Wisconsin law blocks recovery
for Plaintiff in this instance—absent liability for an underlying tort and
damages, a plaintiff cannot seek punitive damages from a defendant. See
Boyer v. Weyerhaeuser Co., 39 F. Supp. 3d 1036, 1040 n.3 (W.D. Wis. 2014)
(citing Cap. Times Co. v. Doyle, 807 N.W.2d 666 (Wis. Ct. App. 2011)).
Because Defendants cannot be held liable due to Plaintiff’s suing outside of
the statute of limitations, Plaintiff cannot be awarded punitive damages.
5.

CONCLUSION
For the reasons explained above, the Court grants Defendants’

motion for summary judgment. ECF No. 17. As explained supra note 1,
Plaintiff has withdrawn his claims in the amended complaint for strict
liability failure to warn, negligent failure to warn and negligent marketing,
breach of express warranty, breach of implied warranty, and fraudulent
concealment, and the Court adopts that voluntary dismissal and dismisses
those claims without prejudice. Therefore, the grant of summary judgment
applies to the remaining claims of strict liability and/or negligence for
design and manufacturing defects, and for punitive damages, and those
claims will be dismissed with prejudice. See Doss v. Clearwater Title. Co., 551
F.3d 634, 639 (7th Cir. 2008). Because all of Plaintiff’s claims are now
disposed of, the case will be dismissed.

Page 30 of 31

Accordingly,
IT IS ORDERED that Plaintiff John P. Nester’s voluntary dismissal
of his claims for strict liability failure to warn, negligent failure to warn and
negligent marketing, breach of express warranty, breach of implied
warranty, and fraudulent concealment, Counts II, IV, VII, VIII, and IX in the
amended complaint, ECF No. 18 at 4 n.1, be and the same is hereby
ADOPTED; Counts II, IV, VII, VIII, and IX in the amended complaint be
and the same are hereby DISMISSED without prejudice;
IT IS FURTHER ORDERED that Defendants Biomet, Inc., Biomet
Orthopedics, LLC, Biomet U.S. Reconstruction, LLC, and Biomet
Manufacturing, LLC’s motion for summary judgment on Plaintiff John P.
Nester’s remaining claims, ECF No. 17, be and the same is hereby
GRANTED; Counts I, III, V, VI, and X in the amended complaint be and
the same are hereby DISMISSED with prejudice; and
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of August, 2024.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 31 of 31