Klein v. Depuy, Inc.
| Decision Date | 31 January 2007 |
| Docket Number | No. 1:05-CV-283-TS.,1:05-CV-283-TS. |
| Citation | 476 F.Supp.2d 1007 |
| Parties | Thomas Mitchell KLEIN and Annie J. Rice, Plaintiffs, v. DEPUY, INC., Depuy Orthopaedics, Inc., and Johnson & Johnson, Inc., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
SPRINGMANN, District Court.
The Plaintiffs, Thomas Mitchell Klein and Annie J. Rice, sued the Defendants, Depuy, Inc., Depuy Orthopaedics, Inc., and Johnson & Johnson, Inc., asserting product liability, failure to warn, negligence, negligent and fraudulent misrepresentation, breach of warranties, intentional and negligent infliction of emotional distress, and loss of consortium arising out of Thomas Klein's total hip replacement. The Defendants' prosthesis and component parts were used in Klein's hip replacement surgery. This matter is before the Court on the Defendants' Motion for Summary Judgment as to the Statute of Repose [DE 19].
The resolution of the Motion for Summary Judgment turns on which of two statutes of repose apply to this diversity action: (1) Indiana's ten-year statute of repose; or (2) North Carolina's six-year statute of repose. The Plaintiffs are citizens of North Carolina; Mr. Klein's surgery took place in North Carolina; and the prothesis was manufactured in Indiana. The Defendants argue that North Carolina's six-year statute of repose bars the Plaintiffs' claims. The Plaintiffs argue that Indiana law governs this case and that their claims were filed within its ten-year statute of repose as well as all other statutory limitations. They also assert that even if North Carolina substantive law applies to their case, their claims are not barred because the North Carolina statute of repose does not apply to their disease-related products liability action.
On August 15, 2005, the Plaintiffs filed their ten-count Complaint against the Defendants alleging that the hip prosthesis manufactured by the Defendants and surgically implanted in Klein was defective and caused injury to the Plaintiffs. Klein claims that the hip prosthesis had a manufacturing or design defect, was marketed without adequate warnings, and was negligently manufactured and designed. He also alleges that the Defendants negligently misrepresented the product, fraudulently misrepresented the product, breached an implied warranty of merchantability, breached an express warranty of merchantability, and intentionally and negligently inflicted Klein with emotional distress. Plaintiff Rice asserts a claim for loss of consortium.
On October 13, 2005, the Defendants answered and on October 18, they filed an Amended Answer to assert a defense that the Plaintiffs' claims were barred by the applicable statute of repose.
On January 19, 2006, the Defendants moved for summary judgment on the Plaintiffs' claims on the basis that they were not filed within the time provided by North Carolina's six-year statute of repose. On April 21, 2006, the parties filed a joint motion for extension of deadlines because the Plaintiff was scheduled to undergo surgery on his hip, after which he could determine whether he would proceed with his claim that the hip prothesis failed or terminate the litigation. On May 3, the Court granted the motion to extend deadlines. On June 15, 2006, the Plaintiffs notified the Court of their intention to proceed with their claims and, on June 30, responded to the Motion for Summary Judgment. On July 18, the Defendants replied.
On October 5, 2006, the Court held a conference with the parties' counsel to set a briefing schedule on an issue of law raised by the Defendants' reply: whether the North Carolina Supreme Court would recognize a disease exception to the state's product liability statute of repose. Accordingly, on October 23, the Plaintiffs filed a Sur-Response and, on November 6, the Defendants filed a Sur-Reply.
The Plaintiffs are residents and citizens of North Carolina. Defendant Depuy, Inc., is a Delaware Corporation with its principal place of business in Indiana. Depuy is a wholly-owned subsidiary of Johnson & Johnson. Depuy Orthopaedics, in turn, is a wholly owned subsidiary of Depuy. Depuy Orthopaedics is an Indiana corporation with its principal place of business in Warsaw, Indiana, where it manufactures orthopedic and related products.1
In 1998, Plaintiff Mitch Klein underwent left hip replacement surgery. The prothesis used in his surgery was manufactured by Depuy Orthopaedics. Some time later, Klein reported to his orthopedic surgeon, Dr. Jack W. Bowling, Jr., a sensation of instability and severe pain in his left hip. Dr. Bowling diagnosed a failed total hip arthroplasty due to aspectic loosening, asymmetric, polyethylene debris, and osteolysis. On June 9, 2006, Dr. Bowling performed surgery for revision of the left hip replacement; he removed various components of the hip prosthesis and confirmed his preoperative diagnosis of osteolysis.
During the surgery, Dr. Bowling saw about one centimeter of degeneration in Klein's proximal femur, caused by a disease known as osteolysis. Dr. Bowling explains in his affidavit filed in response to the Defendant's Motion for Summary Judgment that osteolysis is a progressive disease commonly seen in conjunction with artificial joint replacement. He states that it is caused by an inflammatory reaction to particulate debris from an artificial joint, especially from polyethylene debris. Dr. Bowling believes that the hymlamer cup liner used in the Plaintiff's hip wore at a faster rate than predicted, causing excessive amounts of polyethylene debris to fall down into Klein's proximal femur area, resulting in osteolysis. Dr. Bowling contends that the osteolysis, in turn, caused the Plaintiff's pain and caused his hip prosthesis to fail.
The Plaintiff received all his medical care in North Carolina where he lives.
"A federal court sitting in diversity jurisdiction must apply the substantive law of the state in which it sits," Land v. Yamaha Motor Corp., 272 F.3d 514, 516 (7th Cir.2001) (), including the state's conflict rules, Land, 272 F.3d at 516. Accordingly, the Court must apply Indiana's choice of law rules.
In tort cases, Indiana's choice of law analysis involves multiple inquiries. Simon v. United States, 805 N.E.2d 798, 804-05 (Ind.2004). As a preliminary matter, "the court must determine whether the differences between the laws of the states are `important enough to affect the outcome of the litigation.'" Id. at 805 (citing Hubbard Mfg. Co., v. Greeson, 515 N.E.2d 1071, 1073 (Ind.1987)). If there is no conflict between the purpose or policy of the laws of the two states, a false conflict exists, and the forum's law applies. See Lutz v. DeMars, 559 N.E.2d 1194, 1196 n. 1 (Ind.Ct.App.1990) ). If such differences do exist, the presumption in Indiana is that the traditional lex loci delicti rule applies and that the court will apply the substantive law of "the state where the last event necessary to make an actor liable for the alleged wrong takes place." Simon, 805 N.E.2d. at 805 (citing Hubbard, 515 N.E.2d at 1073).
This presumption is not conclusive, however. It may be overcome if the court is persuaded that the place of the tort "bears little connection" to this legal action. If the location of the tort is insignificant to the action, the court should consider other contacts that may be more relevant, such as: 1) the place where the conduct causing the injury occurred; 2) the residence or place of business of the parties; and 3) the place where the relationship is centered. These factors are not an exclusive list nor are they necessarily relevant in every case. All contacts should be evaluated according to their relative importance to the particular issues being litigated. This evaluation ought to focus on the essential elements of the whole cause of action, rather than on the issues one party or the other forecasts will be the most hotly contested given the anticipated proofs.
The issue to be resolved in this case — whether the action was timely filed — is subject to a conflict between North Carolina's six-year statute of repose and Indiana's ten-year statute of repose. "A statute of repose prevents a plaintiff from bringing an action a certain number of years after the defendant's act or omission, regardless of whether the plaintiff has suffered an injury." Bryant v. Don Galloway Homes, Inc., 147 N.C.App. 655, 556 S.E.2d 597, 600 (2001) (citing Monson v. Paramount Homes, Inc., 133 N.C.App. 235, 515 S.E.2d 445, 449 (1999)); Jordan v. Talaga, 532 N.E.2d 1174, 1189 (Ind.Ct. App.1989) (). Statutes of repose are intended to be a substantive definition of rights, not merely a procedural limitation on the remedy used to enforce the rights. Bolick v. Am. Barmag Corp., 306 N.C. 364, 293 S.E.2d 415, 418-20 (1982).
The purpose of Indiana's product liability statute of repose "is to place a temporal limit upon liability for a product's defects." Stump v. Ind. Equip. Co., 601 N.E.2d 398, 401 (Ind.Ct.App.1992). The Indiana General Assembly imposed a cutoff date after which the manufacturer could not be held liable for defects existing at the time of production in...
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