Rouviere v. DePuy Orthopaedics, Inc.

• Decision Date: 17 September 2021
• Docket Number: 18-cv-4814 (LJL)
• Citation: 560 F.Supp.3d 774
• Parties: Jodi ROUVIERE, et al., Plaintiffs, v. DEPUY ORTHOPAEDICS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

560 F.Supp.3d 774

Jodi ROUVIERE, et al., Plaintiffs,

v.DEPUY ORTHOPAEDICS, INC., et al., Defendants.

18-cv-4814 (LJL)

United States District Court, S.D. New York.

Signed September 17, 2021

Andre A. Rouviere, Law Offices of Andre A. Rouviere Law Offices of Andre A. Rouviere, Coral Gables, FL, Melissa Visconti, Damian & Valori LLP, Miami, FL, Robert Edward Godosky, Godosky & Gentile, P.C., New York, NY, for Plaintiffs.

Kim M. Catullo, Paul Edward Asfendis, Gibbons P.C., New York, NY, for Defendant Howmedica Osteonics Corporation.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

This is a product-liability case involving hip replacement components. In 2012, Plaintiff Jodi Rouviere ("Rouviere") had a hip replacement surgery. Her doctor implanted a device that combined components made by two companies. Rouviere alleges that some of these components impinged on other of the components, releasing toxic metal debris into her body. Rouviere and her husband sued the two companies that made the components of the hip replacement device—DePuy Orthopaedics, Inc. ("DePuy") and Howmedica Osteonics, Corp. (also known as "Stryker"). The Rouvieres now object to a ruling by Magistrate Judge Aaron concerning the scope of their engineering expert report. That objection is overruled. DePuy also moves for summary judgment. That motion is granted.

BACKGROUND

The following facts are drawn from the parties’ Local Rule 56.1 statements. They are undisputed unless otherwise noted. See Dkt. Nos. 182, 227, 262.

Jodi Rouviere injured her hip

in a kitchen fall around 2009. Dkt. No. 227 ¶ 1. She had several hip surgeries over the next few years. Id. ¶ 3. In 2011, Rouviere was diagnosed with Ehlers-Danlos Syndrome, a rare connective tissue disorder that causes structural weakness in muscles, eyes, heart, skin and other tissue. Id. ¶¶ 4–5.

Because of her condition, Rouviere could not find a surgeon in her hometown of Miami that was comfortable operating on her. Id. ¶ 6. So Rouviere traveled to New York to meet with Dr. Robert Buly at the Hospital for Special Surgery. Id. ¶ 7. Rouviere was in pain at the time and had difficulty walking. Id. ¶ 8. After getting a second opinion, Dr. Buly advised Rouviere to undergo a total right hip replacement surgery. Id. ¶ 9. Rouviere agreed.

The hip joint consists of a ball-and-socket mechanism. The ball sits at the top of the thighbone, or femur. The socket (or acetabulum) is inside the pelvis. The ball rotates in the socket, giving the hip a wide range of motion. During a hip replacement surgery, these hip joints may be replaced by metal, plastic, or ceramic parts to recreate the ball-and-socket mechanism. See id. ¶¶ 19–20. At Rouviere's surgery, both the ball and the socket were replaced with artificial components. Id. ¶ 13.

Before the surgery, Dr. Buly explained to Rouviere that there were several types of components that could be used in the implant. Dr. Buly also explained that he would make those choices during the surgery. Id. ¶¶ 12, 14. Rouviere agreed to rely on Dr. Buly to determine which components to use. Id. ¶ 14. Dr. Buly also warned Rouviere of the risks involved in her surgery, though the parties dispute the exact nature of the warnings. Rouviere underwent the hip replacement surgery in August 2012, performed by Dr. Buly. Id. ¶ 13.

At the surgery, Dr. Buly tested various components and ultimately implanted a device that contained five parts, from two different manufacturers:

1. To create the ball, Dr. Buly first implanted a "Summit" titanium stem made by DePuy. Id. ¶¶ 15, 60. The bottom half of the stem was placed inside the femur, while the "neck" protruded out from the femur. Id. ¶ 20.

2. At the tip of the neck, Dr. Buly attached a "Biolox Delta" ceramic head made by DePuy. Id. ¶¶ 15, 63. The below picture shows these two components (the two-tone grey stem and the pink head) inside a femur. Id. ¶ 20.

3. Dr. Buly then covered the ceramic head with a polyethylene insert made by Stryker.

4. To create the socket, Dr. Buly first implanted a round titanium shell into the pelvis. This part was made by Stryker.

5. Finally, Dr. Buly placed a round cobalt-chrome liner inside this shell. This part was also made by Stryker.

In the years after her surgery, Rouviere experienced chronic hip pain, dislocations, and other serious health problems. Id. ¶¶ 33–38, 40. In 2016, Rouviere underwent surgery with Dr. Carlos Alvarado in Miami. At the surgery, Dr. Alvarado observed that the Stryker acetabular components were impinging upon the DePuy stem and had created a notch in the neck of the stem. Id. ¶ 39. Dr. Alvarado also discovered grayish brown tissue in the surrounding area. Id. Rouviere underwent three more surgeries in 2016 and 2017, culminating in Dr. Alvarado removing the components that Dr. Buly had implanted five years earlier. Id. ¶ 43.

PROCEDURAL HISTORY

The Rouvieres filed suit in May 2018. They amended their complaint in October of that year. See Dkt. No. 26. They later voluntarily dismissed their claims against all defendants but two: DePuy and Stryker. Dkt. No. 52.

The Rouvieres’ theory of the case is that the DePuy titanium stem impinged with the Stryker cobalt-chrome liner, releasing toxic metals into Jodi Rouviere's body. Those metals caused various ailments in Rouviere, including metallosis

. In the complaint, Rouviere asserts product-liability claims against DePuy and Stryker under theories of negligence, strict liability, and breach of express and implied warranties. Her husband, Andre Rouviere, also asserts a claim for loss of consortium.¹

This matter was assigned to Magistrate Judge Stewart D. Aaron for general pretrial purposes. At the expert discovery phase, Judge Aaron ordered the Rouvieres to make their expert disclosures by September 21, 2020. See Dkt. No. 128. Three days before that deadline, the Rouvieres informed Judge Aaron that their engineering expert had suddenly withdrawn, and they asked for more time to find a replacement expert. See Dkt. No. 154. Judge Aaron denied that request on the ground that the Rouvieres’ bare-bones letter did not make the requisite showing of good cause. See Dkt. No. 157. The Rouvieres then scrambled and found a second engineer expert in time for the deadline.

The second engineering expert completed a report for the Rouvieres. This report opined almost exclusively on Stryker's components, saying virtually nothing about DePuy. See Dkt. No. 188-1. Stryker moved to disqualify the Rouvieres’ second expert on the ground that the expert had worked for Stryker in another litigation. Judge Aaron granted Stryker's motion to disqualify, but he allowed the Rouvieres additional time to find another replacement engineering expert. Judge Aaron's order specified that this third engineering expert could opine "regarding the same scope of subject areas as were covered by the [disqualified second expert]." Dkt. No. 193 at 6.

The Rouvieres found a third engineering expert, Dr. John Jarrell. By this time, DePuy had already filed its motion for summary judgment, which rested in large part on the absence of expert testimony about DePuy's products. Dr. Jarrell's report remedied this deficiency by opining extensively about DePuy's products. See Dkt. No. 230-5. DePuy then asked Judge Aaron to strike the DePuy-related portions of the Jarrell report. Judge Aaron granted the motion. Judge Aaron explained that, because the second engineering expert had opined solely on Stryker's products, the replacement engineering expert was likewise limited to opining only on Stryker's products. See Dkt. No. 232. Judge Aaron later denied the Rouvieres’ motion for reconsideration, and the Rouvieres filed an objection to this Court. See Dkt. Nos. 266, 267.

After DePuy's summary judgment motion was fully briefed, the Rouvieres asked Judge Aaron to reopen expert discovery due to Stryker's failure to disclose certain discovery materials. Judge Aaron granted the motion in part, allowing two of the Rouvieres’ experts (Dr. Francis Gannon, a pathologist and immunologist, and Dr. Sol Bobst, a toxicologist) to supplement their previous expert reports. See Dkt. No. 296. But Judge Aaron denied the Rouvieres’ request to allow their engineering expert to file a supplemental report. The Rouvieres do not object to this order. Instead, they have filed a motion asking this Court to augment the summary judgment record with Dr. Gannon's and Dr. Bobst's supplemental reports.

In sum, three matters are before this Court: (1) the Rouvieres’ objection to Judge Aaron's striking of the DePuy-related opinions in the Jarrell report, (2) the Rouvieres’ motion to supplement the record, and (3) DePuy's motion for summary judgment.

LEGAL STANDARDS

District courts may designate a magistrate judge to hear and decide a pretrial matter that is "not dispositive of a party's claim or defense." Fed. R. Civ. P. 72(a). For such nondispositive matters, the district judge "must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law." Id. "This standard of review is highly deferential, and magistrate judges are afforded broad discretion in resolving nondispositive disputes[;] reversal is appropriate only if their discretion is abused." Pugh-Ozua v. Springhill Suites , 2020 WL 6562376, at *3 (S.D.N.Y. Nov. 9, 2020) (cleaned up).

Summary judgment is appropriate where "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(a). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." WWBITV, Inc. v. Vill. of Rouses Point , 589 F.3d 46, 49 (2d Cir. 2009) (cleaned up). In determining whether there are any genuine issues of material fact, the Court must view all facts...