The opinion of the court was delivered by: Judge George W. Lindberg
MEMORANDUM OPINION AND ORDER
Before the court is defendant Wright Medical Technology, Inc.'s motion for summary judgment. For the reasons stated below, the motion is granted.
The following facts are undisputed, unless otherwise noted. On April 13, 2006, x-rays taken of plaintiff's pelvis revealed end-stage degenerative joint disease in both hips. Plaintiff was diagnosed with bilateral degenerative osteoarthritis.
Plaintiff had left hip replacement surgery on May 2, 2006. The modular hip prosthesis used in this surgery was designed by defendant, and contained a Profemur® neck made of a titanium alloy. Before the surgery, plaintiff and his doctor signed an informed consent form, acknowledging that plaintiff had been advised and warned of the risks associated with his hip prosthesis, including the potential for failure. At the time of his surgery, plaintiff was five feet, six inches tall and weighed approximately 340 pounds.
Six weeks after his surgery, plaintiff reported that his left leg was strong and nearly pain-free. Plaintiff worked as a school custodian for a period of time between June 2007 and July 2008, a job in which his duties were physically demanding, and required him to do "an awful lot of walking."
In October 2010, the modular neck in plaintiff's hip prosthesis fractured, due to fretting *fn1 and fatigue. *fn2 At that time, plaintiff weighed 438 pounds. The parties agree that plaintiff's weight directly contributed to the fracture. Plaintiff underwent revision surgery on October 9, 2010.
Plaintiff's amended complaint alleges claims of strict liability and negligence based on improper manufacture and design of the prosthesis, and failure to warn (Counts I and II); and breach of implied and express warranty (Counts III and IV). Defendant has moved for summary judgment as to all claims.
Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150 (2000). The moving party bears the initial burden of demonstrating that no material issue exists for trial. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Once the moving party has properly supported its motion, the nonmoving party must offer specific facts demonstrating that a material dispute exists, and must present more than a scintilla of evidence to support its position. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52 (1986).
A. Manufacturing Defect and Breach of Warranty Claims
Plaintiff concedes that that "the facts in this case do not support a claim for manufacturing defect" of the product at issue, and that his breach of implied and express warranty claims in Counts III and IV are time-barred. Accordingly, summary judgment is granted as to Counts I and II to the extent that they are based on a manufacturing defect theory, and as to Counts III and IV.
In order to prevail on his strict product liability claim in Count I, plaintiff must show that his injury resulted from a condition of the product that was unreasonably dangerous. See Mikolajczyk v. Ford Motor Co. , 901 N.E.2d 329, 335 (Ill. 2008). A product may be unreasonably dangerous based on a defect in the product's design. See id. A plaintiff may show that a product design was unreasonably dangerous using the "consumer-expectation test" or the "risk-utility test." Id. at 336. The Illinois Supreme Court has held that it is appropriate to combine the two tests where the evidence supports doing so, and where the parties have not both framed their theories of the case entirely in terms of consumer expectations. See id. at 352; see also Show v. Ford Motor Co. , 659 F.3d 584, 588 (7 th Cir. 2011) (citing Mikolajczyk v. Ford Motor Co. and noting that "consumers' expectations are just factors 'included within the scope of the broader risk-utility test'"). Accordingly, the court will consider consumer expectations as a factor under the risk-utility test.
Under the risk-utility test, the plaintiff must present evidence
"that the magnitude of the
danger outweighs the utility of the product, as designed."
Calles v. Scripto-Tokai Corp ., 864 N.E.2d 249, 257 (Ill.
2007). Under this test, the court first balances relevant factors to
determine whether the case should be submitted to a jury.
Jablonski v. Ford Motor Co. , 955 N.E.2d 1138, 1155 (Ill.
2011). If the plaintiff satisfies this threshold determination, the
finder of fact then determines what weight to give any particular
factor, with the relevance of the factors varying from case to case.
In addition to consumer expectations, the court considers a "broad range of factors" under the ...