McCollin v. Synthes Inc.
| Decision Date | 27 May 1999 |
| Docket Number | No. 2:95CV1097C.,2:95CV1097C. |
| Parties | Scott McCOLLIN and Karen McCollin, Plaintiffs, v. SYNTHES INC., and Danek Medical, Inc., Defendants. |
| Court | U.S. District Court — District of Utah |
James C. Lewis, Salt Lake City, UT, for plaintiffs.
R. Scott Williams, Salt Lake City, UT, for defendants.
This matter comes before the court on defendants' motions for summary judgment, defendants' motion in limine to exclude plaintiff's experts, and plaintiff1 Scott McCollin's motion to reinstate his fraud on the FDA claim. The court conducted hearing on these motions on April 1, 1999, at which plaintiff was represented by Donna Cummings, defendant Synthes, Inc. was represented by R. Scott Williams and Denise Bense, and defendant Danek Medical, Inc. was represented by Paul Felt, Richard Chamovitz, and Joni Jones. Having fully considered the arguments of counsel, the materials submitted to the court, and all applicable legal authority, the court now enters the following order.
McCollin has brought this lawsuit against Synthes and Danek, the manufacturers of two spinal implants used during his spinal surgeries conducted on April 24, 1991 and on November 27, 1991. McCollin injured his back for the first time in 1977; he again injured his back while working as a carpenter in July 1990. McCollin's back problems failed to respond to conservative treatment, including physical therapy and anti-inflammatory medication. By December 1990, McCollin's back pain was so severe that he stopped working. In March of 1991, McCollin's orthopedic surgeon, Dr. Reed Fogg, recommended surgery to fuse his spine. Dr. Fogg performed the surgery on April 24, 1991. During the surgery, Dr. Fogg implanted Synthes's AO/ DCP plates, using a technique called "pedicle fixation" to stabilize McCollin's spine and facilitate the growth of newly-implanted bone grafts.
However, McCollin's bone grafts did not grow and fusion was not achieved; McCollin's pain persisted. On November 27, 1991, Dr. Fogg removed the Synthes device, renewed the bone grafts, and implanted defendant Danek's Texas Scottish Rite Hospital (TSRH) system of plates and screws to stabilize McCollin's spine to promote fusion. After his second operation, McCollin's pain continued. During follow-up visits between March 1992 and August 1993, Dr. Fogg noted that McCollin had achieved fusion where the Danek device had been implanted, that his bone had healed, and that the Danek hardware was in good condition.
McCollin filed this lawsuit on December 15, 1995, following a December 16, 1993 broadcast of 20/20 which examined pedicle implantation surgery and suggested that the use of implants was improper because the FDA had not approved them for use in the spinal pedicles. Over 5000 other plaintiffs have filed similar suits. The 2300 resulting cases were consolidated by the Judicial Panel on Multidistrict Litigation, which designated the Eastern District Court of Pennsylvania under the Honorable Louis C. Bechtle as the transferee court. Judge Bechtle provides a comprehensive discussion of the common theories proffered by the plaintiffs in In re Orthopedic Bone Screw Products Liability Litigation, No. MDL 1014, 1997 WL 186325 (E.D.Pa. April 16, 1997). The Judicial Panel on Multidistrict Litigation remanded McCollin's case after Judge Bechtle had coordinated plaintiffs' complaints, supervised case-wide discovery matters, evaluated generic expert witnesses, and considered summary judgment motions on case-wide issues. After remand, this court consolidated McCollin's separate suits against Synthes and Danek.
A party is entitled to summary judgment on all claims as to which there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Before the court can rule on a defendant's motion for summary judgment, the defendant must satisfy its burden of production. A defendant can meet this burden in one of two ways: by putting evidence into the record which affirmatively disproves an element of the plaintiff's case, or by directing the court's attention to the fact that the plaintiff lacks evidence on an element of its claim, "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has met the burden of production, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party opposing the motion must set forth specific facts showing a genuine issue for trial; mere allegations and references to the pleadings will not suffice. See Anderson, 477 U.S. at 248, 256, 106 S.Ct. 2505. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
McCollin claims that the Synthes device caused his bone graft failure, the need for a second surgery, and pain. McCollin asserts various claims against Synthes: strict liability, negligence per se, negligence, and breach of the warranty of merchantability. Synthes contends that all of McCollin's claims are barred by the statute of limitations.2
The Utah statute of limitations applies to all claims brought by McCollin. See Strickland v. General Motors Corp., 852 F.Supp. 956, 958-59 (). The statute of limitations states: "[a] civil action under this chapter [of the Product Liability Act] shall be brought within two years from the time the individual who would be the claimant in such action discovered, or in the exercise of due diligence should have discovered, both the harm and its cause." See Utah Code Ann. § 78-15-3 (1996). Section 78-15-3 explicitly incorporates the discovery rule by providing that the limitations period begins to run when the claimant "discovered, or in the exercise of due diligence should have discovered, both the harm and its cause." Id.
Synthes argues that the alleged injury caused by Synthes's orthopedic implants occurred on the date of the first surgery, April 24, 1991. Synthes contends that at the latest, McCollin should have known of the alleged injury on November 24, 1991, the date Dr. Fogg removed the Synthes implants and replaced them with the Danek device. According to McCollin, he did not know of the harm and its cause until he viewed the 20/20 program on December 16, 1993, which alerted him to the fact that the Synthes device was not FDA-approved for use as a spinal implant. (See Pl.'s Mem.Opp. Summ.J. at 12).
Generally, the question of when a plaintiff knew, or with reasonable diligence should have known, of a cause of action is a question of fact for the jury. See Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir.1985). However, where the evidence is such that no genuine issue of material fact exists, the determination can be made as a matter of law. See id. at 1388; see also McKinnon v. Tambrands, Inc., 815 F.Supp. 415, 418 (D.Utah 1993).
In order to determine when the statute of limitations began to run, the court must decide when McCollin discovered, or with due diligence should have discovered, his harm and its cause. See Utah Code Ann. § 78-15-3. McCollin stated he experienced a "sharp increase" in his pain when he tried to return to work after the first surgery. (See Pl.'s Mem.Opp. Summ. J., Ex. 27 at 28). He stated that he had "no doubt" that the first surgery made his back pain worse. (See id. at 65). McCollin acknowledges that Dr. Fogg told him the first surgery was a failure, and that the bone had failed to fuse. (See id. at 68). He stated that Dr. Fogg recommended a second surgery in September or October of 1991. (See id.).
McCollin testified that Dr. Fogg told him that the need for the second surgery was caused by the fact that "the hardware was not holding the bone where it needed to be ... for the graft to grow." (See id.). When asked in his deposition to define what "[his] problem was before the second surgery," he answered "the failure of the hardware to hold long enough for the bone graft to do what it's got to do." (See id. at 71, 102). Dr. Fogg told McCollin that the hardware to be used in the second surgery was stronger and better than the first implant, and that several other patients were in the same situation, that is, needing second surgeries to replace implants where bone grafts had failed to grow. (See id. at 69-71).
It is clear from this evidence that McCollin "discovered, or in the exercise of due diligence should have discovered, both the harm and its cause" by the time he underwent the second surgery on November 24, 1991. Utah Code Ann. § 78-15-3; see also Caplin v. Danek Medical, Inc., No. 94-2542-A, 1999 U.S. Dist. LEXIS 1187 (M.D.La., January 8, 1999) ().
At oral argument, plaintiff's counsel argued that the discovery rule should toll the statute of limitations beyond the date of the second surgery, because McCollin did not learn of the "cause" of his injury until he viewed the 20/20 program on December 16, 1993. (S...
To continue reading
Request your trial
-
Minisan v. Danek Medical, Inc.
...include orthopedic surgery. His credentials appear sufficient to survive the "qualification" hurdle in a Daubert analysis. See, McCollin, 50 F.Supp.2d 1119, 1125 (finding Dr. Yarus marginally qualified). However, in addition to sufficient knowledge and training, an expert's testimony must b......
-
Alexander v. Smith & Nephew, P.L.C.
...other things, lacked any analysis indicating how other possible causes of the patient's pain were ruled out); McCollin v. Synthes Inc., 50 F.Supp.2d 1119, 1127 (D.Utah 1999) (rejecting expert's opinion that, among other things, failed to explain how other potential causes were ruled out); C......
-
Alexander v. Smith & Nephew, P.L.C.
...other things, lacked any analysis indicating how other possible causes of the patient's pain were ruled out); McCollin v. Synthes Inc., 50 F.Supp.2d 1119, 1127 (D.Utah 1999) (rejecting expert's opinion that, among other things, failed to explain how other potential causes were ruled out); C......
-
Alexander v. Smith & Nephew, P.L.C., No. 96-CV-1004-K (E).
...other things, lacked any analysis indicating how other possible causes of the patient's pain were ruled out); McCollin v. Synthes Inc., 50 F.Supp.2d 1119, 1127 (D.Utah 1999) (rejecting expert's opinion that, among other things, failed to explain how other potential causes were ruled out); C......