United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. DARRAH, UNITED STATES DISTRICT COURT JUDGE
Timothy Bellas filed a Complaint against Defendant Orthofix,
Inc. and others, in the Circuit Court of Cook County. Later,
Plaintiff voluntarily dismissed his action against all
defendants except Orthofix, Inc. Defendant then removed the
action to federal court on the basis of diversity
jurisdiction. The Complaint alleges negligence (Count IV);
strict liability for manufacturing defects (Count V), design
defects (Count VI), and failure to warn (Count VII); and
breaches of express and implied warranties (Counts XII and
IX), against Defendant based on the Orthofix LRS external
fixator. Defendant filed a Motion for Summary Judgment .
Defendant does not specify on which counts that it is moving
for summary judgment. However, the only arguments raised are
based on product liability, and only Counts V-VII will be
addressed. For the reasons set forth more fully below,
Defendant's Motion for Summary Judgment  is granted
in part and denied in part.
Rule 56.1(a)(3) requires the moving party to provide “a
statement of material facts as to which the party contends
there is no genuine issue for trial.” Ammons v.
Aramark Uniform Servs., 368 F.3d 809, 817 (7th Cir.
2004). Local Rule 56.1(b)(3) requires the nonmoving party to
admit or deny every factual statement proffered by the moving
party and to concisely designate any material facts that
establish a genuine dispute for trial. See Schrott v.
Bristol-Myers Squibb Co., 403 F.3d 940, 944 (7th Cir.
2005). A nonmovant's “mere disagreement with the
movant's asserted facts is inadequate if made without
reference to specific supporting material.” Smith
v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). In the case
of any disagreement, the nonmoving party must reference
affidavits, parts of the record, and other materials that
support his stance. Local Rule 56.1(b)(3)(B). To the extent
that a response to a statement of material fact provides only
extraneous or argumentative information, this response will
not constitute a proper denial of the fact, and the fact is
admitted. See Graziano v. Vill. of Oak Park, 401
F.Supp.2d 918, 936 (N.D. Ill. 2005). Similarly, to the extent
that a statement of fact contains a legal conclusion or
otherwise unsupported statement, including a fact that relies
upon inadmissible hearsay, such a fact is disregarded.
Eisenstadt v. Centel Corp., 113 F.3d 738, 742 (7th Cir.
1997). Pursuant to Local Rule 56.1(b)(3)(C), the nonmovant
may submit additional statements of material facts that
“require the denial of summary judgment.”
district court is entitled to expect strict compliance with
Rule 56.1; substantial compliance is not enough.
Ammons, 368 F.3d at 817. “When a responding
party's statement fails to dispute the facts set forth in
the moving party's statement in the manner dictated by
the rule, those facts are deemed admitted for purposes of the
motion.” Curtis v. Costco Wholesale Corp., 807
F.3d 215, 218 (7th Cir. 2015) (quoting Cracco v. Vitran
Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009)).
following facts are taken from the parties' statements of
undisputed material facts submitted in accordance with Local
time of filing, Plaintiff was a citizen of Illinois. (DSOF
¶ 3.) Defendant is a citizen of Minnesota and Texas.
(Id. ¶ 4.) Plaintiff was born with a congenital
defect and his right leg is approximately 3.5 centimeters
shorter than his left leg. (Id. ¶ 20.) On March
22, 2010, Plaintiff underwent a right femur osteotomy and
placement of the Orthofix LRS fixator on his right leg.
(Id. ¶ 21.) The Orthofix LRS is capable of
compressing or lengthening the bone, depending on how it is
turned. (Id. ¶ 33.) Whether the device should
be adjusted in a clockwise or counter-clockwise fashion
depends on how the device is assembled by the physician when
it is installed. (Id. ¶ 34.) Dr. Edward
Abraham, who performed the surgery, affixed a piece of tape
to the Orthofix LRS with an arrow indicating the correct
direction for adjustments. (Id. ¶¶ 22,
the post-surgery, follow-up appointment, Dr. Abraham taught
Plaintiff and his mother how to adjust the Orthofix LRS.
(Id. ¶ 22.) Plaintiff's mother performed
the daily adjustments to the device and asked questions to
confirm the prescribed direction of adjustment. (Id.
¶¶ 23-24.) Plaintiff's mother adjusted the
Orthorix LRS every day for the two months following
Plaintiff's initial surgery. (Id. ¶ 25.) At
a May 28, 2010 follow-up appointment, an x-ray revealed that
Plaintiff's femur had shortened rather than lengthened.
(Id. ¶ 27.) Dr. Abraham determined that the
Orthofix LRS device had been adjusted in the opposite
direction of the one he had instructed. (Id. ¶
28.) The tape showing the correct direction had not fallen
off, and the device was not defective. (Id.
¶¶ 38, 39.) Plaintiff underwent a remedial
procedure on May 24, 2010, which involved adjusting the
Orthofix LRS and manipulation of the osteotomy site.
(Id. ¶ 29.)
distributes the Orthofix LRS but was not involved with the
design, manufacture, or testing of the device. (Id.
judgment is appropriate when “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. Courts deciding summary judgment motions
must view facts “in the light most favorable to the
nonmoving party only if there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007). A genuine dispute as to any
material fact exists if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The moving party has the initial burden
of establishing that there is no genuine dispute as to any
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party meets this burden,
“[t]he nonmoving party must point to specific facts
showing that there is a genuine issue for trial.”
Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.
2009). Factual disputes do “not preclude summary
judgment when the dispute does not involve a material
fact.” Burton v. Downey, 805 F.3d 776, 783
(7th Cir. 2015). The evidence must be such “that a
reasonable jury could return a verdict for the nonmoving
party.” Pugh v. City of Attica, Ind., 259 F.3d
619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
brings three strict-liability counts based on products
liability against Defendant. In Count V, Plaintiff alleges
that the Orthofix LRS is defectively and improperly
manufactured. In Count VI, Plaintiff alleges that the
Orthofix LRS is defectively and improperly designed. In Count
VII, Plaintiff alleges that Defendant failed to properly and
adequately warn Plaintiff as to: the proper candidates and
safest and most effective methods of use of the Orthofix LRS;
the risks and benefits of the Orthofix LRS; the inadequate
research and testing of ...