United States: Defendant Did Not "Fail To Warn" Where It Warned Of Exactly What Happened To The Plaintiff's Artificial Hip

Last Updated: September 23 2016
Article by Rachel B. Weil

We (in its blog-specific singular version) are longstanding country music fans. There is backstory – call us when you are in Philadelphia and we will tell you about it over coffee. Suffice it to say that Nashville, the Grand Ole Opry, and country greats from the 1970's and 1980's occupy a significant and permanent place in our soul. So we were moved by a new video making the rounds of social media today. Entitled "Forever Country," it is features 30 Country Music Association Award winners – both modern and legendary – in a beautiful montage celebrating 50 years of the CMA awards. You can see it here. There is also some pretty cool irony in the choice of "Take Me Home, Country Roads" as the song that opens the video and winds its way throughout. In 1975, John Denver was nominated as Country Music Association Entertainer of the Year. The previous year's winner, Charlie Rich, was a bit "in his cups," as they say, when he read the nominations. As he announced Denver as the winner, he struck a match and lit the card on fire in protest, because he did not think Denver was truly "country." Happy to debate that when we have coffee, but we (unashamedly) love John Denver, as our office neighbors will attest. We are happy that Denver's signature song was used in this celebration of country music. If it wins him some new fans, better late than never.

Also better late than never to report on today's case, which just appeared online though it was decided 2 ½ years ago. In Peterson v. Wright Medical Technology, 2014 U.S. Dist. LEXIS 189473 (C.D. Ill. Feb. 13, 2014), the United States District Court for the Central District of Illinois considered the defendant's motion for summary judgment on the plaintiff's failure-to-warn claim in a hip implant case. The plaintiff, who was obese, received a new modular artificial hip to address his "significant end stage osteoarthritis" caused by an earlier accident. At the time of the plaintiff's hip implant, his surgeon "had been an orthopedic surgeon for 31 years and had seen many evolutions of hip implants. He had read several journal articles about modular implants, including the [subject implant]." He had also read the Instructions for Use ("IFU") included with the implant. He "knew that a patient's weight and activity level could have an effect on the ultimate outcome of the surgery but had no reason to believe that Plaintiff was not an appropriate candidate for the implantation of this device." The surgeon explained all of these risks to the plaintiff and required him to attend a two-hour teaching session before obtaining his informed consent. Peterson, 2014 U.S. Dist. LEXIS 189743 at *3-4.

Two years after the plaintiff's surgery, the titanium modular neck of his artificial hip broke into two pieces. In his complaint, the plaintiff asserted the usual strict liability and negligence claims, along with a punitive damages claim that was later dropped. The defendant moved for summary judgment on the plaintiff's warnings claims sounding in both strict liability and negligence.

The court first explained that Illinois has adopted the learned intermediary doctrine and that the defendant's duty to warn therefore ran to the surgeon and not to the patient. It was undisputed that the implant's IFU warned of the risks that obesity and the patient's activity level could contribute to the failure of the device and that the device had a finite service life and could break and need to be replaced at some point. The surgeon "specifically advised Plaintiff that as a relatively young and active man, he would put more use and wear and tear on the hip joint than an older individual and that the artificial materials wear out with time." Id. at *20. At the time of the plaintiff's surgery, there had been no reported failures of the type the plaintiff would later experience associated with the specific implant the plaintiff received. Nevertheless, the plaintiff maintained that the defendant should have warned the surgeon that the titanium modular necks of certain of its other implants had failed (in fewer than 20 of over 100,000 total implants), arguing that a brochure published by the defendant "misleadingly indicated that none of the necks had experienced a clinical failure since their inception in 1985 . . . ." Id. at *21. The court responded that there was no evidence that the plaintiff or his surgeon saw this brochure (you can see our updated 50-state "failure to read" post here) or that "the known fractures involved the specific product at issue in this case." Id.

The plaintiff next asserted that the defendant "knew . . . that the [implant was] more susceptible to fracture in heavier and active individuals . . . ." As the court pointed out, "the IFU specifically convey[ed] this general warning," and the specific components implanted in the plaintiff were selected by the surgeon based on his knowledge of the plaintiff and of the implant system. Id. at *22. Finally, the plaintiff pointed to literature and reports of modular neck failures dated after the plaintiff's implant surgery. Because Illinois does not recognize a post-sale duty to warn, the court held that none of these documents was relevant to the plaintiff's claim as the defendant's duty to warn was limited to information it possessed at the time of the plaintiff's implant surgery.

The court concluded,

. . . [G]iven the unavailability of a cause of action based on post-sale warnings in Illinois, . . . [t]he only viable, relevant information is that Defendant was aware of less than 20 failures of a different model implant, no known failures of the model of implant at issue in this case, and that weight and activity could place greater loads on the implant and lead to failure. Given this knowledge, the Court finds that the Defendant adequately warned of the known risks of increased failure for overweight and very active individuals, and [the surgeon] was aware of these warnings and potential dangers.

Id. at *22-23. No genuine issue of material fact, summary judgment for defendant on warnings claims. Simple, neat, correct, and far too uncommon. Time to pour some sweet tea and crank up the country tunes.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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