Mele v. Howmedica, Inc.
Decision Date | 15 March 2004 |
Docket Number | No. 1-01-4229., No. 1-01-4228 |
Citation | 348 Ill. App.3d 1,283 Ill.Dec. 738,808 N.E.2d 1026 |
Parties | Richard MELE, Plaintiff-Appellee and Cross-Appellant, v. HOWMEDICA, INC., Defendant-Appellant and Cross-Appellee. |
Court | United States Appellate Court of Illinois |
McKenna, Storer, Rowe, White & Farrug, Chicago, Thomas A. Reed, Thomas F. Lucas, Christopher J. Dalke, of counsel; David Klingsberg, Maris Veidemanis and Kay Scholer LLP, New York, for Appellant and Cross-Appellee.
William J. Harte, Ltd., William J. Harte; Patrick J. Kenneally, Ltd., Thomas L. Trinley, of counsel, Chicago, for Appellee and Cross-Appellant.
In August 1994 Richard Mele sued Howmedica, Inc., the manufacturer of a medical device a surgeon implanted into plaintiff. The trial court denied plaintiff's motion for certification of a class of all patients into whom surgeons in Illinois implanted similar devices. A jury found that plaintiff did not have notice of wrongful causation for his injury until September 1992. The jury also found that Howmedica's unreasonably dangerous medical device caused plaintiff's injury. The court entered judgment on the jury's verdict awarding plaintiff $400,000 in damages. Defendant appeals and plaintiff cross-appeals from denial of the motion to permit the lawsuit to proceed as a class action.
Plaintiff had severe arthritis in his right hip. He went to Dr. Mitchell Sheinkop, an orthopedic surgeon, in May 1991. Dr. Sheinkop recommended a total replacement of the hip with artificial components. Plaintiff agreed. Dr. Sheinkop performed the surgery on May 28, 1991.
To gain access to the hip Dr. Sheinkop needed to cut through the femur, the bone that extends from the hip to the knee. The femur has a nearly spherical head which fits into the acetabular cup of the hip; near the femur's head lies a large protuberance called the trochanter, where several muscles attach to the bone. Dr. Sheinkop performed a trochanteric osteotomy on plaintiff. That is, he cut through the bone and pulled out the top part, including the trochanter.
Dr. Sheinkop then cemented an artificial stem into the marrow canal of the femur. The artificial stem connected to an artificial nearly spherical head of the femur, designed to move smoothly in an artificial acetabular cup. Dr. Sheinkop implanted an artificial acetabular cup, with a smooth polyethylene lining, into plaintiff's hip, to complete the artificial joint. After inserting the artificial pieces, Dr. Sheinkop reattached the top part of the femur, including the trochanter, to the portion of the femur that remained in place during the surgery. For the artificial hip to perform properly, the femur must heal, with the top part of the femur realigning with the body of the femur. When Dr. Sheinkop put the top of the femur back in place, he secured it to the body of the femur with a Dall-Miles trochanter cable grip system (D-M system) manufactured by defendant.
On the day of surgery, shortly after the operation, Dr. Sheinkop discovered a dislocation of the hip. About 7% of patients experience similar dislocations following hip replacement surgery. Dr. Sheinkop and his assistants, using accepted techniques, manipulated the hip back into place.
At follow-up visits in February and September 1992, plaintiff complained to Dr. Sheinkop of pain in the hip. Dr. Sheinkop took X rays during both visits. According to the medical record for September 18, 1992, Dr. Sheinkop then "introduced the thought of removing the Dall-Miles cable system" to alleviate the pain. In a second surgery performed on January 28, 1993, Dr. Sheinkop removed the D-M system.
In September 1997 plaintiff consulted another doctor about increasing pain in his thigh. New X rays showed that plaintiff had suffered endosteal lysis, which is a form of severe bone loss. The doctor recommended revision surgery to replace several elements of the artificial hip. Dr. Aaron Rosenberg performed the revision surgery in November 1997. Plaintiff recovered well from the surgery.
The complaint filed in August 1994 included a class action count, in which plaintiff sought to represent all persons into whom surgeons implanted the D-M system in the course of hip surgeries performed in Illinois. Plaintiff listed several questions allegedly common to claims of all class members, including the question of whether the D-M system had a design defect rendering defendant strictly liable in tort and whether defendant negligently designed the D-M system. Plaintiff also requested class certification with the class action limited to "one or more of the common questions" listed.
Plaintiff supported his motion for class certification with an article reporting on a study of the D-M system. Silverton, "Complications of a Cable Grip System," 11 J. Arthroplasty 400 (1996). Dr. Silverton reported that, at the one hospital studied, five surgeons used the D-M system in 68 surgeries performed between January 1990 and July 1992. Eight of the patients had large deposits of metal debris near the joint of the femur with the hip. 11 J. Arthroplasty at 401. "Bone destruction or osteolysis around the cable in the area of the lesser trochanter was seen in seven patients (10%)." 11 J. Arthroplasty at 401. Five of the patients needed reoperations due to painful cables and fragmentation. 11 J. Arthroplasty at 401. As a result of the study, the hospital decided not to use the D-M system for routine trochanteric osteotomies. 11 J. Arthroplasty at 404.
Plaintiff found two other patients who filed lawsuits against defendant alleging defective design of the D-M system.
After argument on the motion for class certification, the court said:
Plaintiff moved for clarification of the basis for denial of class certification. The court denied the motion. Plaintiff then moved for an order pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308) to permit immediate appellate review of the denial of class certification. At the hearing the court responded:
After plaintiff's second deposition, defendant moved for summary judgment, arguing that the deposition testimony showed that by February 1992 plaintiff had sufficient notice of wrongful causation to trigger the statute of limitations period. The defendant argued that the filing of the complaint in August 1994 came too late. The trial court found material issues of fact concerning the time plaintiff discovered wrongful causation for his injury. Accordingly the court denied the motion for summary judgment.
The court held:
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CHAPTER § 9.02 Common Defenses
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