Bellas v. Orthofix, Inc., Case No. 14-cv-9623

• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Writing for the Court: Judge John W. Darrah
• Parties: TIMOTHY BELLAS, Plaintiff, v. ORTHOFIX, INC., Defendant.
• Docket Number: Case No. 14-cv-9623
• Decision Date: 06 October 2016

TIMOTHY BELLAS, Plaintiff,
v.
ORTHOFIX, INC., Defendant.

Case No. 14-cv-9623

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 6, 2016

Judge John W. Darrah

MEMORANDUM OPINION AND ORDER

Plaintiff Timothy Bellas filed a Complaint against Defendant Orthofix, Inc. and others, in the Circuit Court of Cook County. Later, Plaintiff voluntarily dismissed his action against all defendants except Orthofix, Inc. Defendant then removed the action to federal court on the basis of diversity jurisdiction. The Complaint alleges negligence (Count IV); strict liability for manufacturing defects (Count V), design defects (Count VI), and failure to warn (Count VII); and breaches of express and implied warranties (Counts XII and IX), against Defendant based on the Orthofix LRS external fixator. Defendant filed a Motion for Summary Judgment [49]. Defendant does not specify on which counts that it is moving for summary judgment. However, the only arguments raised are based on product liability, and only Counts V-VII will be addressed. For the reasons set forth more fully below, Defendant's Motion for Summary Judgment [49] is granted in part and denied in part.

LOCAL RULE 56.1

Local Rule 56.1(a)(3) requires the moving party to provide "a statement of material facts as to which the party contends there is no genuine issue for trial." Ammons v.

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Aramark Uniform Servs., 368 F.3d 809, 817 (7th Cir. 2004). Local Rule 56.1(b)(3) requires the nonmoving party to admit or deny every factual statement proffered by the moving party and to concisely designate any material facts that establish a genuine dispute for trial. See Schrott v. Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir. 2005). A nonmovant's "mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material." Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). In the case of any disagreement, the nonmoving party must reference affidavits, parts of the record, and other materials that support his stance. Local Rule 56.1(b)(3)(B). To the extent that a response to a statement of material fact provides only extraneous or argumentative information, this response will not constitute a proper denial of the fact, and the fact is admitted. See Graziano v. Vill. of Oak Park, 401 F. Supp. 2d 918, 936 (N.D. Ill. 2005). Similarly, to the extent that a statement of fact contains a legal conclusion or otherwise unsupported statement, including a fact that relies upon inadmissible hearsay, such a fact is disregarded. Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir. 1997). Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant may submit additional statements of material facts that "require the denial of summary judgment."

A district court is entitled to expect strict compliance with Rule 56.1; substantial compliance is not enough. Ammons, 368 F.3d at 817. "When a responding party's statement fails to dispute the facts set forth in the moving party's statement in the manner dictated by the rule, those facts are deemed admitted for purposes of the motion." Curtis v. Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir. 2015) (quoting Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)).

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BACKGROUND

The following facts are taken from the parties' statements of undisputed material facts submitted in accordance with Local Rule 56.1¹.

At the time of filing, Plaintiff was a citizen of Illinois. (DSOF ¶ 3.) Defendant is a citizen of Minnesota and Texas. (Id. ¶ 4.) Plaintiff was born with a congenital defect and his right leg is approximately 3.5 centimeters shorter than his left leg. (Id. ¶ 20.) On March 22, 2010, Plaintiff underwent a right femur osteotomy and placement of the Orthofix LRS fixator on his right leg. (Id. ¶ 21.) The Orthofix LRS is capable of compressing or lengthening the bone, depending on how it is turned. (Id. ¶ 33.) Whether the device should be adjusted in a clockwise or counter-clockwise fashion depends on how the device is assembled by the physician when it is installed. (Id. ¶ 34.) Dr. Edward Abraham, who performed the surgery, affixed a piece of tape to the Orthofix LRS with an arrow indicating the correct direction for adjustments. (Id. ¶¶ 22, 37.)

During the post-surgery, follow-up appointment, Dr. Abraham taught Plaintiff and his mother how to adjust the Orthofix LRS. (Id. ¶ 22.) Plaintiff's mother performed the daily adjustments to the device and asked questions to confirm the prescribed direction of adjustment. (Id. ¶¶ 23-24.) Plaintiff's mother adjusted the Orthorix LRS every day for the two months following Plaintiff's initial surgery. (Id. ¶ 25.) At a May 28, 2010 follow-up appointment, an x-ray revealed that Plaintiff's femur had shortened rather than lengthened. (Id. ¶ 27.) Dr. Abraham determined that the Orthofix LRS device had been adjusted in the opposite direction of the one he had instructed. (Id. ¶ 28.) The tape showing the correct direction had not

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fallen off, and the device was not defective. (Id. ¶¶ 38, 39.) Plaintiff underwent a remedial procedure on May 24, 2010, which involved adjusting the Orthofix LRS and manipulation of the osteotomy site. (Id. ¶ 29.)

Defendant distributes the Orthofix LRS but was not involved with the design, manufacture, or testing of the device. (Id. ¶¶ 31-32.)

LEGAL STANDARD

Summary judgment is appropriate when "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. Courts deciding summary judgment motions must view facts "in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). A genuine dispute as to any material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477...