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Aebischer v. Stryker Corp.

August 1, 2008

LENORE AEBISCHER, PLAINTIFF-APPELLANT,
v.
STRYKER CORPORATION AND HOWMEDICA OSTEONICS CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Central District of Illinois. No. 05 C 2121-Michael P. McCuskey, Chief Judge.

The opinion of the court was delivered by: Sykes, Circuit Judge.

ARGUED JANUARY 16, 2008

Before MANION, WOOD, and SYKES, Circuit Judges.

Lenore Aebischer's artificial hip unexpectedly began to cause her pain less than four years after it was implanted, and she soon underwent surgery to replace it. After the surgery her doctor concluded that the device had suffered "advanced or catastrophic failure." Aebischer sued the manufacturer and its parent company, alleging that the product was defective, but the district court dismissed her lawsuit under Illinois' two-year statute of limitations because Aebischer had filed suit more than two years after learning that her hip would need to be replaced.

We reverse. The statute of limitations began to run only when Aebischer should have realized that her injury might have been wrongfully caused, and a jury could reasonably conclude that Aebischer filed suit within two years of that date. Accordingly, we remand the case for trial.

I. Background

In December of 1997, Lenore Aebischer, then 44, underwent surgery to replace her left hip with a prosthetic device. Her doctor, Peter Bonutti, warned that prosthetic hips do not last forever, noting that she was at increased risk for wear because she was young and physically active. Still, he estimated that her new hip would last 15 to 20 years.

That estimate proved to be overly optimistic. In early 2001-less than four years after her hip replacement- Aebischer began to experience groin pain and had difficulty standing and walking. At first Dr. Bonutti did not know what was wrong, although he noted "small wear around the socket" and was concerned that she might have "osteolysis," a condition involving dissolution or degeneration of bone tissue that can be caused by wear or infection.

Aebischer continued to experience pain and returned to Dr. Bonutti several times for further evaluation. By January of 2002, Bonutti confirmed that Aebischer had osteolysis and concluded that particles of plastic from the prosthetic hip had gotten between the implant and her bone, wearing away the bone and causing her new hip to loosen. Bonutti told Aebischer that she would need a replacement hip, but she put off surgery, returning several times over the next year and a half for follow-up care. Each time, Bonutti told her that she needed a second hip-replacement surgery.

On June 16, 2003, Bonutti performed a second surgery to replace Aebischer's failing prosthesis and discovered that the "osteolysis and osteolytic lesions were much worse than the radiographs even suggested." After surgery he told Aebischer that her first prosthetic device had exhibited "advanced or catastrophic failure."

Aebischer waited until April 14, 2005-nearly two years after her surgery-to file a lawsuit against Howmedica (the manufacturer of the prosthetic) and Stryker (its parent) asserting various product-liability claims. The defendants removed the suit to the federal district court, which granted summary judgment to the defendants, concluding that Aebischer had filed her suit after the two-year statute of limitations had expired. See 735 ILL. COMP. STAT. 5/13-202. In the district court's view, Aebischer was on notice by January of 2002 that her hip problems might have been wrongfully caused. At that point, the court concluded, the two-year statute of limitations began to run, and because Aebischer had waited substantially longer than two years to file suit, her claims were barred. Aebischer appealed.

II. Discussion

Under Illinois law, which governs this case, lawsuits seeking recovery for personal injury must normally be filed within two years of the injury. 735 ILL. COMP. STAT. 5/13-202. But for injuries that are not readily discoverable, the law makes an exception: the two-year clock begins to run only when the victim (1) discovers her injury and knows that it was wrongfully caused or (2) has "sufficient information concerning [the] injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved." Daubach v. Honda Motor Co., 707 N.E.2d 746, 750 (Ill. App. Ct. 1999).

The district court concluded that Aebischer was on "inquiry notice" that her injury might have been wrongfully caused by at least January of 2002, when her doctor explained that she had osteolysis, that her hip was loosening, and that particles from her prosthesis had gotten between the prosthesis and her bone, wearing it away. Because Aebischer did not file suit within two years of that date, the court concluded that she had sued too late. Aebischer agrees that she was aware of her injury by January of 2002 but claims that she had no reason to suspect that the injury was caused by wrongdoing until June of 2003 (well within ...


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