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Jaske v. Zimmer

January 26, 2010


The opinion of the court was delivered by: Judge James B. Zagel



Plaintiff in this case brings strict liability and negligence claims against Defendant knee implant manufacturer. Defendant now moves to exclude the testimony of one of Plaintiff's experts, claiming it to be unreliable and irrelevant. Defendant also moves for summary judgment, arguing that without expert testimony to establish that the alleged product defect caused Plaintiff's injuries, Plaintiff lacks evidence to support his claim. For the following reasons, Defendant's motions are granted.


On November 6, 1995, Plaintiff Wayne Jaske ("Jaske") had knee replacement surgery, during which the Miller Galante II ("MGII") knee system was installed. The MGII consists of three parts: (1) the metal stemmed tibial plate, which attaches to the tibia; (2) the metal femoral component which attaches to the femur; and (3) a polyethylene tibial articulating surface ("TAS"), which sits between the two metal pieces and is designed to be affixed to the tibial plate.

At the time of the surgery, Jaske was 41 years old and weighed 201 pounds.

In January 2002,*fn1 Jaske complained to Dr. Scott Seymour of activity-related knee pain. After x-rays and a bone scan, Dr. Seymour determined that the tibial components of the MGII were "[p]robably loose." On June 6, 2002, during a revision surgery, it was discovered that the MGII's tibial base plate was loose and had fractured, and that the TAS had delaminated. At the time of the revision surgery, Jaske was 48 years old and weighed 260 pounds.

Both parties agree that the tibial plate fractured as a result of fatigue, but disagree as to the cause of this fatigue. Plaintiff maintains that the delaminated surface of the TAS was uneven, and that the metal femoral component was "riding" on this uneven surface. The repeated stress applied to the tibial plate caused the fatigue fracture. According to Plaintiff, the delamination of the TAS was the result of oxidation of the polyethylene caused by a gamma irradiation process used by Defendant to sterilize the MGII subsequent to its manufacture. It is this defect that Plaintiff blames for the fatigue fracture of the tibial plate.

Defendant puts forth a different reason for the fatigue and subsequent fracture. According to Defendant, Plaintiff's tibial plateau, which supports the tibial base plate, underwent bone loss, also known as resorption. As a result of resorption, portions of the base plate were unsupported, causing cyclic stress in the base plate, and resulting in the fatigue fracture. Moreover, Defendant maintains that the loosening and subsequent fracture of the base plate are known risks associated with knee implants, and that activity level, physical stature, and surgical technique are factors that may affect the life of the implant and whether parts of it will loosen and/or fracture.


Defendant now moves to exclude the testimony of Plaintiff's expert witness, Lyle R. Jacobs ("Jacobs"). Jacobs is a metallurgical engineer retained to examine the tibial base plate removed from Plaintiff's knee. In his initial expert report, submitted on September 18, 2002, Jacobs concluded that "the subject knee prosthesis fractured by fatigue with the fatigue emanating from the smooth surface on which the logo was present[,]" or the top of the plate, affixed to the TAS. At his subsequent deposition in August 2005, Jacobs testified to this conclusion, and explained that the fatigue failure was caused by "repetitive tensile or bending forces[.]" He declined to offer an opinion "as to why those bending tensile forces were acting on that base plate[.]"

Two years later, in September 2007, in response to Defendant's motion to exclude Plaintiff's other three expert witnesses,*fn2 Plaintiff filed an affidavit from Jacobs in which he opined that: the fracture was not the result of forces applied from beneath the device such as bone resorption, but as the result of repetitive forces/stresses applied to the top of the device such as those forces (fatigue) resulting from the uneven surface of the [TAS].

Defendant moved to strike this affidavit, arguing that it was inconsistent with his deposition testimony, untimely, unreliable due to the five-year gap between Jacobs' opinions, and prejudicial based on its late disclosure. In response, on September 4, 2008, Plaintiff submitted a second affidavit from Jacobs, explaining the late disclosure, and including the following opinion:

Because the TAS became oxidized as a result of gamma irradiation in the sterilization process and thereby degraded and delaminated (as explained by [Plaintiff's experts] Drs. Duvall and Gobran), it provided an uneven surface which caused stress to be placed on the metal ...

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