Bloodsworth v. Smith & Nephew, Inc.

• Decision Date: 20 November 2006
• Docket Number: Civil Action No. 2:05cv622-ID.
• Citation: 476 F.Supp.2d 1348
• Parties: Mary BLOODSWORTH, et al., Plaintiffs, v. SMITH & NEPHEW, INC., Defendant.
• Court: U.S. District Court — Middle District of Alabama

476 F.Supp.2d 1348

Mary BLOODSWORTH, et al., Plaintiffs, v. SMITH & NEPHEW, INC., Defendant.

Civil Action No. 2:05cv622-ID.

United States District Court, M.D. Alabama, Northern Division.

November 20, 2006.

Thomas Edward Dutton, Pittman Dutton Kirby & Hellums PC, Birmingham, AL, for Plaintiffs.

Alan Daniel Mathis, James C. Barton, Jr., James P. Pewitt, Lee McWhorter Pope, Johnston, Barton, Proctor & Powell, LLP, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

DE MENT, Senior District Judge.

I. INTRODUCTION

Before the court are two motions filed by Defendant Smith & Nephew, Inc. ("Smith & Nephew"): (1) a motion for summary judgment; and (2) a motion to strike Plaintiffs' expert disclosure and to exclude the expert opinion testimony. (Doc. Nos.37-38.) In this products liability lawsuit, involving an alleged defective component of a prosthetic hip replacement system, Smith & Nephew has moved for summary judgment and to exclude expert opinion testimony on the ground that Plaintiffs' sole proposed expert, Donald F. Hodurski, M.D. ("Dr.Hodurski"), has not provided any "admissible expert testimony" concerning a design defect and/or causation. Plaintiffs Mary and Jerry Bloodsworth oppose the motions.¹ (See Doc. Nos. 40-41.) After careful consideration of the arguments of counsel, the relevant law and the record as a whole, the court finds that Smith & Nephew's motions are due to be granted in part and denied in part as moot.

II. JURISDICTION AND VENUE

Previously, the court denied Plaintiffs' motion to remand, finding that the non-diverse Defendants were fraudulently joined. (See Doc. Nos. 22, 32.) The remaining Defendant, which is Smith & Nephew, and Plaintiffs are of diverse citizenship, and the amount in controversy exceeds $75,000, exclusive of interest and costs. The court, therefore, properly exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a). The parties do not contest personal jurisdiction or venue, and the court finds adequate allegations of both.

III. STANDARD OF REVIEW

Summary judgment is entered only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At the summary judgment juncture, the court assumes that the evidence of the non-movant is true and draws all reasonable inferences in the light most favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court's function is not to weigh the evidence and determine the truth of the matter, but to decide whether there is a genuine issue for trial. Id. at 249-50, 106 S.Ct. 2505.

On a summary judgment motion, the movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it contends demonstrate the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. For issues on which the non-movant will bear the ultimate burden at trial, the movant may satisfy its initial burden either by (1) "point[ing] out to the district court ... that there is an absence of evidence to support the non-moving party's case" or by (2) producing "affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-16 (11th Cir.1993); see also Edwards v. Aguillard, 482 U.S. 578, 595 n. 16, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987); Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548.

Once the movant has carried that burden, the burden then shifts to the party opposing the motion to "present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257, 106 S.Ct. 2505. "[C]onclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Douglass v. United Serv. Auto. Ass 79 F.3d 1415, 1429 (5th Cir.1996); Bennett v. Parker, 898 F.2d 1530, 1533-34 (11th Cir. 1990) (A "conclusory allegation" cannot defeat summary judgment.). "[A]fter adequate time for discovery and upon motion," summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548.

IV. BACKGROUND

In June 2003, Dr. Hodurski, who is an orthopedic surgeon, performed a total left hip replacement on Mrs. Bloodsworth. During this surgery, Dr. Hodurski implanted a prosthetic hip replacement system manufactured by Smith & Nephew. This system consists of a polyethylene liner that is implanted in the patient's acetabulum (the "acetabular cup"), and a femoral stem with a synthetic ball on the head of the stem that is implanted into the patient's femur. (Hodurski Dep. at 6-9 (Ex. 2 to Doc. No. 31).) The synthetic ball on the head of the femoral stem rests within the polyethylene liner of the acetabular cup, simulating the ball and socket mechanism of the hip joint. (Id. at 7-9.)

After this surgery, Mrs. Bloodsworth began experiencing hip dislocation problems. Dr. Hodurski decided to perform another surgery to reinforce Mrs. Bloodsworth's hip prosthesis to prevent further dislocations. One of the options available and the option which Dr. Hodurski chose involved implanting a constrained liner which fits into the acetabular cup. (Id. at 12-18.) The constrained liner (a polyethylene liner with a locking ring) fits in the acetabular cup of the hip replacement system, its purpose being to provide additional stability and thereby decrease the chances that the ball on the head of the femoral stem will come out of the polyethylene liner of the acetabular cup resulting in dislocation. (Id. at 14-16.) The constrained liner which Dr. Hodurski used also was a Smith & Nephew product. (Id. at 14.) Mrs. Bloodsworth, however, alleges that, after the constrained liner was implanted, she continued to experience complications, which necessitated additional surgeries. (See Compl. at 3-4.)

Seeking relief for Mrs. Bloodsworth's injuries, Plaintiffs, who are husband and wife, commenced this lawsuit on May 31, 2005, by filing a complaint in the Circuit Court of Montgomery County, Alabama, against Smith & Nephew and other defendants who are no longer parties to this lawsuit. Mrs. Bloodsworth brings the following causes of action against Smith & Nephew: products liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"); negligence; breaches of implied warranties of merchantability and fitness; fraudulent suppression; fraudulent and/or negligent misrepresentation; and failure to warn. (Compl¶¶ 1-9.) Mr. Bloodsworth claims loss of his wife's consortium. (Id. ¶ 11.)

The heart of Plaintiffs' claims is that the constrained liner was in a defective condition when it was implanted in Mrs. Bloodsworth and that the defective condition of the constrained liner caused the product's failure and resulted in injury to her. Although Plaintiffs allege a variety of claims, as recited above, all of the claims are dependent upon the theory that the constrained liner failed due to a design defect.

To support the foregoing theory of their case, Plaintiffs rely on proposed expert testimony from Dr. Hodurski. In their disclosure to Smith & Nephew of their expert testimony, as required by the court's scheduling order and Rule 26(a)(2) of the Federal Rules of Civil Procedure,² Plaintiffs state as follows:

Plaintiff[s] expect[] that during the trial of this cause opinion testimony will be presented by Donald F. Hodurski, M.D. The particulars of his education and experience are stated in the attached Curriculum Vitae.

The subject matter, facts and opinions of Dr. Hodurski's testimony are expected to be the same as those to which he testified during his deposition of February 6, 2006. For particulars, please refer to the deposition transcript.

The grounds for Dr. Hodurski's expected opinion testimony are his education, experience and his course of treatment of the plaintiff, Mary Bloodsworth.

(See Ex. A to Doc. No. 37.)

Dr. Hodurski's deposition testimony, upon which Plaintiffs rely and which relates to the design and performance of the constrained liner at issue is as follows:

Q. Prior to Mrs. Bloodsworth's revision, had you used constrained liners before?

A. Yes.

Q. Had you used a Smith & Nephew?

A. One.

. . . . .

Q. And at the time of Mrs. Bloodsworth's surgery, had your experience with those been positive?

A. Yes.

. . . . .

Q. Okay. Do you use Smith & Nephew, these products, anymore?

A. Yes.

Q. The hips you do?

A. Yes.

Q. Has your experience with other than Mrs. Bloodsworth's hip been good with reference to these hips?

. . . . .

A. The hips, yes. The constrained liner, no. In other words, the primary one that I stick in there does well. The constrained liner, no.

Q. And you don't use those constrained liners any longer?

A. No.

Q. And when you have used those constrained liners, they have failed?

A. Yes.

Q. And when you have used those constrained liners, did you use them as they were intended to be used?

A. Yes.

Q. And I'm not trying to make an engineer out of you, but in your opinion are those constrained liners defective in one way or another?

. . . . .

A. I don't — my track record in my group's been miserable, and I don't, I don't think it's a good appliance. I think their primary is good. I think that particular revision thing, which is hopefully once every ten or twelve years, is not good.

Q. And, so, as far as you would be concerned, would you think them to be defective?

. . . . .

A. And the...