Wade v. Danek Medical Inc., Civil Action No. 3:95CV876.

• Decision Date: 13 May 1998
• Docket Number: Civil Action No. 3:95CV876.
• Citation: 5 F.Supp.2d 379
• Parties: Jeanette WADE, et al., Plaintiffs, v. DANEK MEDICAL INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

5 F.Supp.2d 379

Jeanette WADE, et al., Plaintiffs, v. DANEK MEDICAL INC., et al., Defendants.

Civil Action No. 3:95CV876.

United States District Court, E.D. Virginia, Richmond Division.

May 13, 1998.

Arthur Vincent Shaheen, Shaheen & Shaheen, Richmond, VA, John J. Cummings, III, New Orleans, LA, Easter Peter Moses, Law Office of Easter P. Moses, Roanoke, VA, Donna S. Cummings, Frank C. Dudenhefer, Jr., Cummings, Cummings & Dudenhefer, New Orleans, LA, Thomas J. Kliebert, Jr., Gramercy, LA, Darryl Tschirn, New Orleans, LA, for Jeannette Wade and Edwin Wade.

Gary J. Spahn, Mays & Valentine, Richmond, VA, Stephen S. Phillips, Philip Lebowitz, Pepper, Hamilton & Scheetz, Philadelphia, PA, Margaret S. Woodruff, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, Robert Armistead Angle, Mays & Valentine, Richmond, VA, Edward Hutton Starr, Jr., Dabney Jefferson Carr, IV, Mays & Valentine, L.L.P., Richmond, VA, George Lehner, Pepper Hamilton, Washington, DC, James F. Roegge, Richard L. Pemberton, Jr., Meagher & Geer, Minneapolis, MN, Hill Beverley Wellford, III, Christian & Barton, Richmond, VA, Norman P. Jeddeloh, David M. Rownd, Burditt & Radzius, Chicago, IL, Lauren E. Remick, Burditt and Radzius, Philadelphia, PA, Mitchell Stearn, K. Thomas Shahriari, Porter, Wright, Morris & Arthur, Washington, DC, June J. Essis, Fineman & Bach, P.C., Philadelphia, PA, Shawn M. Collins, The Collins Law Firm, Naperville, IL, Fred Krutz, Daniel J. Mulholland, David H. Fulcher, Roland M. Slover, Edwin S. Gault, Jr., Forman, Perry, Watkins, Krutz & Tardy, P.L.L.C., Jackson, MS, Robert E. Nord, Hinshaw & Culbertson, Chicago, IL, Janet L. MacDonell, Deutsch, Kerrigan & Stiles, New Orleans, LA, Julie A. Harms, Michael J. Leech, Thomas F. Ging, Hinshaw and Culbertson, Chicago, IL, W. Lee Kohler, Joseph McReynolds, Douglas Elliott, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, Richard I. Werder, Jr., Jones, Day, Reavis & Pogue, Cleveland, OH, Louis A. Bove, Bodell, Bove & Van Horn, Philadelphia, PA, John C. Ivins, Jr., Hirschler, Fleischer, Weinberg, Cox & Allen, David Wayne Robinson, Hirschler, Fleischer, Weinberg, Cox & Allen, Richmond, Michael R. Fruehwald, Barnes & Thornburg, Indianapolis, IN, Franklin Brawner Greer, McGuire. Woods, Battle & Boothe, Richmond, Robert William McFarland, McGuire, Woods, Battle & Boothe, Norfolk, George J. Murphy, Hecker, Brown, Sherry and Johnson, Philadelphia, PA, Tracy E. Gold, Aubert and Pajares, Metairie, LA, William W. Dunlap, Jr., James D. Wilson, Harris, Shelton, Dunlap and Cobb, Memphis, TN, Gary Allen Kalbaugh, Jr., Robert Gerard Harrington, Kalbaugh, Pfund & Messersmith, P.C., Richmond, VA, Lawrence A. Mann, Stanton E. Shuler, Jr., Leake and Andersson, New Orleans, LA, J. Kurt Straub, Obermayer, Rebmann, Maxwell & Sippel, Philadelphia, PA, Vijay Kumar Mago, Hunton & Williams, Harry Margerum Johnson, III, Hunton & Williams, Richmond, VA, Matthew James Calvert, Hunton & Williams, Atlanta, GA, Brian P. Quirk, Montgomery, Barnett, Brown, Read, Hammond & Mintz, LLP, New Orleans, LA, Paul Dennis Krause, Wilson, Elser, Moskowitz, Edelman & Dicker, Washington, DC, Robert R. Reeder, Cozen & O'Connor, Philadelphia, PA, David P. Corrigan, Harman, Claytor, Corrigan & Wellman, Richmond, VA, Thomas G. Stayton, Leslie S. Rogers, Baker & Daniels, Indianapolis, IN, Albert J. Dahm, Baker & Daniels, Fort Wayne, IN, Sarah L. Olson, Richard C. Bartelt, Wildman, Harrold, Allen and Dixon, Chicago, IL, Carl A. Henlein, Brown, Todd and Heyburn, Louisville, KY, Stacy C. Taylor, Woods, Rogers & Hazlegrove, PLC Richmond, VA, Susan S. Wettle, Lori E. Hammond, Charles M. Pritchett, Jr., Brown, Todd & Heyburn, Douglas W. Langdon, Brown, Todd & Heyburn, Louisville, KY, for Danek Medical, Inc., Sofamor, Inc., Sofamor-Danek Group, Inc., Sofamor, S.N.C., Warsaw Orthopedic, Inc., Eduardo Luque, Charles E. Johnston, II, Richard Ashman, Ph.D., Gary Lowery, George Rapp, Ensor Transfeldt, John A. Herring, Thomas Whitecloud, III, Thomas A. Zdeblick, Texas Scottish Rite Hospital for Crippled Children, American Academy of Orthopaedic Surgeons, North American Spine Society, Scoliosis Research Society, Acromed Corporation, Charter Number 614043, Acromed Corp., (Now Acromed Corporation, Charter Number 614043), Acromed Corporation, Charter Number 816942, Acromed, Inc. Charter Number 811415, Acromed Incorporated, (Now Acromed Inc., Charter No. 811415), Acromed Incorporated, Charter Number 816943, Acromed Holding Corporation, Charter Number 811416, Acromed Corporation, (Now Acromed Holding Corporation, Charter Number 811416), Ace Medical Company, Advanced Spine Fixation Systems, Inc., Cross Medical Products, Depuy-Motech, Inc., Scientific Spinal, Smith & Nephew Richards, Inc., Synthes (U.S.A), Synthes, Inc., Synthes North America, Inc., Synthes, A.G. Chur, Zimmer, Inc., Spinal Science Advancement Foundation, Youngwood Medical Specialities, Inc., Hansen Yuan, M.D., Richard W. Treharne, Ph.D., Ermon R. Pickard and Stuart Medical Inc.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, Senior District Judge.

This matter is before the Court on defendants' motions for summary judgment and dismissal for lack of personal jurisdiction. This case is one of more than two thousand separate products liability actions filed by more than five thousand plaintiffs claiming that defective "pedicle screw fixation devices" which have been surgically attached to the pedicles of their spine have caused them to suffer physical injuries. Pursuant to 28 U.S.C. § 1407, the Judicial Panel on Multi-district Litigation transferred these cases to the United States District Court for the Eastern District of Pennsylvania for consolidated pretrial proceedings, following which two separate groups of plaintiffs filed consolidated "Omni Actions." Generally speaking, the plaintiffs in the first of these two groups, including Janet Wade and Edwin Wade, the plaintiffs herein, sued not only the manufacturers, designers and distributors of the devices on products liability theories of recovery, but they sued, as well, a number of medical associations, charging that these defendants had unlawfully conspired with the device manufacturers to promote, market and sell pedicle screw fixation devices to medical providers.¹

The MDL court, through Judge Louis C. Bechtle, managed the litigation through extensive procedural matters, including dismissal of the original complaints, the filing of amended omni complaints, discovery, and the resolution of numerous motions, including two motions to dismiss, and that court has recently remanded Wade's case to this court for final disposition. Their case is now before the court on: (1) the Medical Associations' motion for summary judgment; (2) Zimmer, Inc.'s motion for summary judgment; (3) Warsaw Orthopedic, I., Sofamor, S.N.C., Sofamor-Danek Group, Sofamor, Inc., Danek Medical, Inc.'s motion for summary judgment; (4) Richard Ashman, Ph.D., John A. Herring, M.D., Charles E. Johnston, II, M.D., Gary Lowery, M.D., Ph.D., George Rapp, M.D., Ensor E. Transfeldt, M.D., Thomas Whitecloud, III, M.D., Thomas A. Zdeblick, M.D., and Texas Socttish Rite Hospital for Children's motion to dismiss for lack of personal jurisdiction and motion for summary judgment; (5) Youngwood Medical's motion for summary judgment; (6) Synthes, USA, Synthes, Inc., and Synthes North America's motion for summary judgment; (7) DePuy-Motech, Inc.'s motion for summary judgment; (8) Ace Medical Company's motion for summary judgment; (9) Cross Medical Products Inc.'s motion for summary judgment; (10) Smith & Nephew Richards, Inc.'s motion for summary judgment; and (11) Advanced Spine Fixation Systems, Inc.'s motion to dismiss for lack of personal jurisdiction.

Defendants move for summary judgment on the ground that Plaintiffs' claims are barred by the statute of limitations. All of plaintiffs' claims are subject to Virginia Code Section 8.01-243(A), which requires that actions for personal injury be brought within two years of when the injury, no matter how slight, is sustained. St. George v. Pariser, 253 Va. 329, 484 S.E.2d 888 (1997) (injury is deemed to occur, and the statute of limitations period begins to run, whenever any injury, however slight, is sustained). The date on which the statute of limitations begins to run is the date when the injury is received, notwithstanding that the plaintiff may sustain more substantial injuries at a later date. See Locke v. Johns-Manville Corp., 221 Va. 951, 957, 275 S.E.2d 900 (1981).

Plaintiff's spinal fusion surgery occurred on October 26, 1992. According to Ms. Wade's deposition, her back pain never diminished after her October 1992 surgery. In fact she states that she specifically told individuals responsible for her pain management, "Please, something is going wrong, and I know y'all are doing your best." Wade Dep. at 167. She stated that her back pain became worse immediately after surgery and "was not improved at all." Id. Ms. Wade makes abundantly clear in her deposition that she was aware of her alleged injury and its alleged cause within days of her implantation surgery. She testified that she knew that she was having a problem that was caused by the screws before she went to pain management in April 1993. Id. at 196. She states the same in her questionnaire at the Pain Management Center at MCV. See Questionnaire at JRW-001-000013, Exhibit H to Defendant Danek's Reply Memorandum. There is no question that Ms. Wade knew of her alleged injury immediately following her back surgery, but certainly no later than April 1993.

Plaintiffs put forth three arguments that the statute of limitations does not bar their action.² First, plaintiffs argue that because of Ms. Wade's long history of back pain, she could not have reasonably known of a connection between her symptoms and the TSRH device until her doctors told her there may be a link. Second, plaintiffs contend that the defendants have failed to meet their burden of showing...