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Aebischer v. Stryker Corp.

March 12, 2007

LENORE AEBISCHER, PLAINTIFF,
v.
STRYKER CORPORATION, AND HOWMEDICA OSTEONICS CORP., DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#111) filed by Defendants Howmedica Osteonics Corporation (Howmedica) and Stryker Corporation (Stryker). Following this court's careful consideration of the arguments of the parties and the documents provided by the parties, this court agrees with Defendants that Plaintiff's claims are time-barred. Accordingly, Defendants' Motion for Summary Judgment (#111) is GRANTED. Therefore, the motions filed by the parties on February 19, 2007 (#167, #169, #170, #172) are MOOT.

FACTS

Plaintiff, Lenore Aebischer, has worked as a special education teacher since she obtained her bachelor's degree and began teaching. On December 8, 1997, Plaintiff underwent surgery and had a total hip replacement. Plaintiff was 44 years old at that time. Plaintiff had a total hip replacement because of a long history of hip pain, which had become more severe in the preceding two years. X-rays taken prior to the surgery showed severe loss and collapse of the femoral head. The x-rays also showed that Plaintiff had a dysplastic and shallow acetabulum. In other words, Plaintiff had abnormal growth or development of the cup-shaped socket in the hip bone. Having failed to obtain relief with conservative treatment and given her increased pain and marked loss of motion, Plaintiff decided to proceed with total hip replacement. The components which were implanted during her surgery included an Osteonics metal acetabular shell, a polyethylene liner for the shell, a femoral stem, a Zirconia (ceramic) femoral head and bone screws.

Prior to surgery, Plaintiff and her doctor, Dr. Peter Bonutti, discussed the fact that, because she was having her hip replaced at a relatively young age, she would need at least one revision surgery during her lifetime. Dr. Bonutti testified that he discussed with Plaintiff that, at her age and activity level, she was at an increased risk for loosening and wearing over time. However, Plaintiff testified that Dr. Bonutti told her that the initial implant would last 15 to 20 years. Dr. Bonutti performed the surgery and Plaintiff did very well following the surgery. Plaintiff testified that she returned to work on January 27, 1998, was doing well and was walking without a limp. She testified that she was able to return to her regular daily activities, including exercise.

Plaintiff had a follow-up visit with Dr. Bonutti on February 3, 1998, and then did not return to see him until August 23, 2001. At that time, Plaintiff complained that she had been having groin pain for approximately six months and some discomfort with standing and walking. X-rays taken on that date showed "possible small wear around the socket" and a "possible early lytic problem on the acetabulum." Dr. Bonutti discussed with Plaintiff his concern that she may have osteolysis, which he defined as "dead bone." Dr. Bonutti testified that the most common cause of osteolysis in a total hip replacement is wear of the polyethylene or plastic. He testified that other possible causes are metal debris or metal wear and infection. Dr. Bonutti advised anti-inflammatories and stretching.

On October 5, 2001, Plaintiff had a bone scan performed at Sara Bush Lincoln Health Center. The bone scan showed increased activity over the proximal left femur. The bone scan report stated that this "may be a site for either infection and/or loosening of the prosthesis." On October 11, 2001, Plaintiff returned to Dr. Bonutti's office still complaining of groin pain. Plaintiff testified that, at that office visit, Dr. Bonutti had concerns about the hip components loosening. On November 13, 2001, Plaintiff saw Dr. Bonutti for follow-up regarding her left hip pain. Dr. Bonutti testified that, at this office visit, he was suspicious about loosening of the components and was concerned that another surgery may be required. Dr. Bonutti stated that he talked to Plaintiff "about changing her activity, lifestyle, unloading her hip, decreasing the wear risks, avoiding any type of impact loading." He testified that he also told her to "stay[] away from any type of sporting-related activities or workouts" and to "[t]ry to slow down, essentially, and see if her symptoms would resolve." On November 26, 2001, Plaintiff saw her chiropractor, Dr. Steven Hutti, and told him that Dr. Bonutti was concerned that the appliance in her left hip may be loose.

On January 8, 2002, Dr. Bonutti saw Plaintiff again in his office. Dr. Bonutti testified that Plaintiff was having increased pain. Dr. Bonutti testified that he made the diagnosis of osteolysis at that time. He stated that he was concerned about the wear and the osteolysis, and was concerned that "the acetabular component would be loosening." Dr. Bonutti testified that he was concerned that Plaintiff "would require revision surgery; that the osteolysis was becoming worse." He testified that he told Plaintiff that she really needed "to seriously think about surgery to correct this." He stated he told her that he thought "surgery was inevitable at this stage, and that she should start planning for that." X-rays taken that day showed that Plaintiff had "cystic lesions with wear of the polyethylene with proximal riding femoral head in the acetabular socket."

Plaintiff testified at her deposition that, on January 8, 2002, her understanding of the osteolysis in her hip was that particles of polyethylene from the Osteonics polyethylene liner had gotten between her implant and the bone and had progressively worn the bone away causing the implant to loosen. Plaintiff testified that she also knew on that date that, if the osteolysis continued to progress, the implant "would continue to loosen."

On June 11, 2002, Plaintiff returned to see Dr. Bonutti at which time he confirmed by x-ray that the acetabular component was loose. He testified that "at that visit, I would have definitely said the acetabular component was loose." X-rays showed a 3 mm. shift proximally on the acetabular liner and cystic changes around the acetabulum consistent with osteolysis. Dr. Bonutti testified that he let Plaintiff know "that she need[ed] to start thinking about surgical options, or it will get worse rapidly." Dr. Bonutti testified that Plaintiff did not want to have revision surgery at that time.

On December 10, 2002, Plaintiff saw Dr. Bonutti again for follow-up of the polyethylene wear of her hip. Dr. Bonutti advised Plaintiff to undergo surgery to replace the Osteonics polyethylene liner because the x-ray showed her osteolysis was getting worse. Dr. Bonutti testified that he was concerned about the acetabulum and "told her she should again consider a revision, or she may have some catastrophic complications." Plaintiff indicated she might consider surgery during the summer, when she had a break in her school year.

Dr. Bonutti saw Plaintiff again on April 24, 2003. He again discussed the need for revision surgery on her hip due to the loose acetabulum, the worn plastic component and the loss of bone in her socket in the acetabulum. By this point, there was significant osteolysis, which would require a fairly substantial surgery with bone grafting in addition to replacement of the components. During Dr. Bonutti's deposition, the following exchange took place:

Q: I noted in here a statement that, Patient understands and would like to consider left revision arthroplasty, primarily due to acetabular loosening due to poly wear. So that was something you had explained to her at this time?

A: I explained it to her previously, also; that we felt that the plastic was wearing, causing her socket to loosen, causing bone loss in her acetabulum, and that she should--something should ...


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