By George Basharis, J.D.
A magistrate judge recommended the dismissal of breach of warranty, product liability, and prejudgment interest claims against hip implant maker Wright Medical.
In a personal injury lawsuit filed by the recipient of a metal-on-metal hip replacement implant, a federal magistrate judge in Delaware has recommended the dismissal of breach of warranty and common law product liability claims against Wright Medical Technology, Inc. and Wright Medical Group (Wright). The magistrate also recommended the dismissal of claims for prejudgment interest. However, claims for negligent and fraudulent misrepresentation satisfied federal heightened pleading standards and will continue (McCurdy v. Wright Medical Technology, Inc., February 25, 2020, Fallon, S.).
Injury. The patient received a total left hip replacement in 2011 and subsequently experienced severe pain, discomfort, and inflammation. According to the personal injury complaint against Wright, the pain and discomfort were the result of metal poisoning and the loosening of the Wright Medical Hip Implant and Conserve® Cup. The Conserve Cup is a metal-on-metal hip replacement device. The complaint alleged that Wright misrepresented the Conserve Cup as safe and effective despite evidence of the toxicity of metal-on-metal hip replacement products. The patient asserted strict product liability, negligent and fraudulent misrepresentation, and breach of express and implied warranty claims against Wright. He also demanded prejudgment interest. Wright filed a motion to dismiss the claims and a motion to strike the demand for prejudgment interest.
Stating a claim. Wright argued that the complaint failed to state a claim because it did not expressly say that the plaintiff received a Conserve Cup or any other metal-on-metal hip implant. However, the court observed that throughout the complaint the plaintiff alleged that a "Wright Medical Hip Implant and Conserve Cup" injured him. The plaintiff’s failure to specify the "Conserve Cup" did not negate his allegations that the hip implant he received failed and caused his injuries, the court said.
Strict liability. The plaintiff is a resident of and had his hip replacement surgery in Alabama. Wright is a Delaware corporation. Choice of law is important in the case because Delaware recognizes a common law cause of action for strict liability, including design and manufacturing defect claims, while Alabama permits strict liability only under the more limited Alabama Extended Manufacturer’s Liability Doctrine (AEMLD). The court determined that Alabama law should apply to the case because that is where the patient resides and the place where he was injured. Wright’s place of incorporation was not as important. Applying Alabama law, the magistrate court dismissed the "general, freestanding, and overlapping" strict liability claims but it did so without prejudice so that the plaintiff could refile the claims under the AEMLD.
Fraud. The court determined that the claims for negligent and fraudulent misrepresentation satisfied heightened federal pleading requirements. The court noted that the complaint explicitly averred Wright had knowledge that their hip replacement products, including the Conserve Cup, could fail and lead to injuries, did not disclose possible consequences to doctors or patients, and misrepresented the safety of metal-on-metal hip implants on its website and product brochures.
Breach of warranty. The magistrate determined that the breach of warranty claims were time-barred under Alabama’s statute of limitations for non-consumer goods. The court rejected the unsupported assertion that hip implants were consumer goods under the state Uniform Commercial Code (UCC). Although the state’s highest court has yet to determine the nature of implants under the UCC, the magistrate noted that at least one federal district court in Alabama has found that labeling a medical device as a consumer good was inconsistent with the state UCC’s definition of "consumer good." Consequently, the magistrate reasoned that the weight of authority suggested that the Alabama Supreme Court would find a medical device, such as a hip implant, to be a non-consumer good.
Prejudgment interest. Wright argued that the court should strike the demand for prejudgment interest because damages in the case were not readily ascertainable. The court, applying the Alabama common law rule that prejudgment interest is not permissible in personal injury actions because damages in personal injury cases are unliquidated until the case is resolved, agreed.
The case is Civil Action No. 19-1898-CFC.
Attorneys: R. Joseph Hrubiec (Napoli Shkolnik, LLC) for James McCurdy. Oderah C. Nwaeze (Duane Morris LLP) for Wright Medical Technology, Inc. and Wright Medical Group, Inc.
Companies: Wright Medical Technology, Inc.; Wright Medical Group, Inc.
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