O'Shea v. Zimmer Biomet Holdings, Inc.

• Decision Date: 27 September 2018
• Docket Number: Case No. 1:16-cv-02813
• Citation: 342 F.Supp.3d 1354
• Parties: Patrick O'SHEA, Plaintiff, v. ZIMMER BIOMET HOLDINGS, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

342 F.Supp.3d 1354

Patrick O'SHEA, Plaintiff,

v.ZIMMER BIOMET HOLDINGS, INC., et al., Defendants.

Case No. 1:16-cv-02813

United States District Court, N.D. Georgia, Atlanta Division.

Signed September 27, 2018

Cale Howard Conley, Davis Popper, Conley Griggs Partin, LLP, Stacey Allen Carroll, Carroll Law Firm, LLC, Atlanta, GA, for Plaintiff.

Anna C. Rutigliano, Faegre Baker Daniels, LLP, Indianapolis, IN, Llonyddwch Rhyddid Watkins, Faegre & Benson LLP, Denver, CO, Lucas Allen Westby, Stephen Mann Brooks, Nelson Mullins Riley & Scarborough, LLP, Atlanta, GA, for Defendants.

OPINION AND ORDER

Michael L. Brown, United States District Judge

This products-liability case arises from the failure of a replacement knee manufactured by Defendants Zimmer Biomet Holdings, Inc., Zimmer, Inc., and Zimmer U.S., Inc., and implanted in Plaintiff Patrick O'Shea's left leg. For the reasons below, the Court grants Defendants' Motion for Summary Judgment (Dkt. 48) in part and denies it in part. The Court also denies Plaintiff's Motion to Amend Complaint as moot. (Dkt. 55).

I. Background

Plaintiff suffered from chronic knee pain in his left knee. Dkt. 48-2 at ¶ 1-2; Dkt. 51 at ¶¶ 3-4. His left leg was deformed, the result of a gunshot wound sustained in 1978. Dkt. 48-2 at ¶ 3; Dkt. 51 at ¶ 1. His femur bowed forward and to the outside. Dkt. 48-2 at ¶ 4. His left leg was also 1.5 centimeters shorter than his right leg and rotated twenty degrees externally. Id. He walked with a gait. Id.

In 2007, he decided to have his knee replaced. Dkt. 48-2 at ¶ 6; Dkt. 51 at ¶ 8. He was obese. Dkt. 48-2 at 2. Plaintiff's surgeon, Dr. Diehl, chose to implant a Zimmer Biomet NexGen Complete Knee Solution LPS-Flex Prolong System replacement knee. Id. at ¶ 7. Dr. Diehl performed the knee-replacement surgery in June 2007. Id. at ¶ 6. Plaintiff recovered well and regained movement. Id. at ¶ 10.

Seven years later, Plaintiff's pain returned. Dkt. 48-2 at ¶ 11; Dkt. 51 at ¶ 10-13. Dr. Diehl examined him and recommended another surgery to diagnose the problem. Dkt. 48-2 at ¶ 13; Dkt. 51 at ¶ 14.

During that surgery, Dr. Diehl found that the polyethene tibial post of the replacement knee – that is, the portion of the artificial knee attached to the tibia – had broken. Dkt. 48-2 at ¶ 11; Dkt. 51 ¶ 14. Dr. Diehl replaced the polyethylene liner, still using the Zimmer product. Dkt. 48-2 at ¶ 14. No one kept the broken component after surgery. Dkt. 51 at ¶ 15. Plaintiff filed this action asserting design defect, manufacturing defect, and failure-to-warn claims arising from the broken tibial post. After discovery, Defendants moved for summary judgment on all of Plaintiff's claims. (Dkt. 48).

II. Legal Standard

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "No genuine issue of material facts exists if a party has failed to ‘make a showing sufficient to establish the existence of an element ... on which that party will bear the burden of proof at trial.’ " Am. Fed'n of Labor & Cong. Of Indus. Orgs. v. City of Miami , 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the initial responsibility of asserting the basis for its motion. Id. at 323, 106 S.Ct. 2548. The movant is not, however, required to negate the non-movant's claim. Instead, the moving party may meet its burden by showing that there is "an absence of evidence to support the non-moving party's case." Id. at 324, 106 S.Ct. 2548. After the moving party has carried its burden, the non-moving party must present competent evidence of a genuine issue for trial. Id.

The Court views all evidence and factual inferences in a light most favorable to the non-moving party. Samples v. City of Atlanta , 846 F.2d 1328, 1330 (11th Cir. 1988). But the existence of some alleged factual disputes will not defeat an otherwise proper motion for summary judgment. "The requirement is there be no genuine issue of material fact." Anderson , 477 U.S. at 247-48, 106 S.Ct. 2505.

III. Analysis

Plaintiff brings claims of manufacturing defect, design defect, and failure-to-warn arising out of the failure of his Zimmer knee-replacement device. Plaintiff asserts these claims as both strict-liability and negligence claims. Although Georgia recognizes causes of action for products liability sounding in both strict-liability and negligence, "[b]ecause of the inherent similarity between a negligence and a strict liability action under Georgia law, the analysis of plaintiff's strict liability claims largely applies to an examination of the negligence claim." Jones v. Amazing Prods., Inc. , 231 F.Supp.2d 1228, 1251 (N.D. Ga. 2002).

A. Manufacturing Defect

To establish a manufacturing defect under Georgia law, a plaintiff "must prove that defendant is the manufacturer of the property, that the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended (i.e. defective), and that its condition when sold was the proximate cause of the injury sustained." Williams v. Mast Biosurgery USA, Inc. , 644 F.3d 1312, 1319 (11th Cir. 2011) (quoting Chicago Hardware & Fixture Co. v. Letterman , 236 Ga.App. 21, 510 S.E.2d 875, 877-78 (1999) ). "A manufacturing defect is one where there was a flaw from the manufacturing process not in the design or specifications of the product." Brazil v. Janssen Research & Dev. , 196 F.Supp.3d 1351, 1358 (N.D. Ga. 2016). The flaw must render the product unsuitable for its intended use.

A manufacturing defect is "measurable against a built-in objective standard or norm of proper manufacture." Banks v. ICI Americas Inc. , 264 Ga. 732, 450 S.E.2d 671, 673 n.2 (1994). The "product's defectiveness is determined by measuring the product in question against the benchmark of the manufacturer's designs." In re Mentor Corp. ObTape Transobturator Sling Prods. Liability Litig. , 711 F.Supp.2d 1348, 1365 (M.D. Ga. 2010) (quoting ACE Fire Underwriters Ins. Co. v. ALC Controls, Inc. , No. 1:07-cv-606, 2008 WL 2229121, at *2 (N.D. Ga. May 28, 2008) ). So to succeed on a manufacturing-defect claim, a plaintiff must show that the defendants' product "was not manufactured in accordance with its design." Jones v. Amazing Prods. Inc. , 231 F.Supp.2d 1228, 1239 (N.D. Ga. 2002). But "[i]t is not necessary for the plaintiff to specify precisely the manner of the defect." Williams v. American Med. Sys. , 248 Ga.App. 682, 548 S.E.2d 371, 374 (2001). To survive summary judgment, the plaintiff must show that the product did not "operate as intended" from which a jury could infer that the product deviated from the manufacturer's design. Id.¹

Defendants contend they are entitled to summary judgment on Plaintiff's manufacturing-defect claim because Plaintiff failed to produce expert testimony that the replacement knee was defective. Plaintiff contends that he need not provide expert testimony and that his other evidence is enough.

Georgia law does not always require a plaintiff in a manufacturing defect case to present expert testimony. Mast Biosurgery , 644 F.3d at 1319. Georgia courts have held that "the existence of a manufacturing defect in a products liability case may be inferred from circumstantial evidence." Firestone Tire and Rubber Co. v. King , 145 Ga.App. 840, 244 S.E.2d 905, 909 (1978). Reliance on circumstantial evidence is particularly appropriate when – as here – the product is destroyed or otherwise unavailable for testing. Graff v. Baja Marine Corp. , 310 F. App'x 298, 306 (11th Cir. 2009) (citing Rose v. Figgie Int'l, Inc., 229 Ga.App. 848, 495 S.E.2d 77, 81 (1997) ).

The Eleventh Circuit has explained that expert testimony is necessary to show a manufacturing defect when an evaluation of the alleged defect lies outside the "common experience of a jury" – that is, when a juror would not otherwise understand how the product was intended to perform. Mast Biosurgery , 644 F.3d at 1320. In Mast Biosurgery , the plaintiff claimed surgical wrap implanted in her abdomen was defective. Id. at 1318-19. She presented testimony from her doctor showing that the wrap broke down into hard plastic pieces, migrated into her colon, and caused severe injuries. Id. at 1319. She did not, however, present expert testimony about how the wrap was intended to operate or that it failed to operate appropriately. Id.

The Eleventh Circuit affirmed the district court's order granting summary judgment for the defendant, finding that – while Georgia law may not require expert testimony in all manufacturing-defect cases – the proper functioning of the surgical mesh was beyond the ken of the average juror. Id. at 1320-1321. Expert testimony was necessary to provide information "about the nature of the product and how it was expected to function when implanted in the human body." Id. at 1321. Without this expert testimony, the court found the plaintiff failed to raise an issue of material fact about whether the mesh was defective. Id.

In reaching this decision, the Eleventh Circuit distinguished two cases in which Georgia courts ruled that expert testimony was unnecessary. First, the Eleventh Circuit distinguished McDonald v. Mazda Motors of America, Inc. , 269 Ga.App. 62, 603 S.E.2d 456 (2004). In that case, the plaintiff alleged that a new car was defective because it began making a loud rattling noise right after delivery and the dealership could not fix it. Second, the Eleventh Circuit distinguished Williams v. American Med. Sys. , 248 Ga.App. 682, 548 S.E.2d 371, 374 (2001). In that case, the plaintiff alleged that an inflatable penile implant was defective after it ruptured...