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. (“Defendant”) and others, in the Circuit
Court of Cook County. The Complaint was removed to federal
court. Defendant filed a Motion for Summary Judgment, which
was granted in part and denied in part. Defendant has now
filed a Motion to Reconsider . For the reasons discussed
below, Defendant's Motion to Reconsider  is granted
in part and denied in part.
was born with a congenital defec, t and his right leg is
approximately 3.5 centimeters shorter than his left leg. On
March 22, 2010, Plaintiff underwent a right femur osteotomy
and placement of the Orthofix LRS fixator on his right leg.
The Orthofix LRS is capable of compressing or lengthening the
bone, depending on how it is turned. 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. Dr. Edward Abraham, who
performed the surgery, affixed a piece of tape to the
Orthofix LRS with an arrow indicating the correct direction
May 28, 2010 follow-up appointment, an x-ray revealed that
Plaintiff's femur had shortened rather than lengthened.
Dr. Abraham determined that the Orthofix LRS device had been
adjusted in the opposite direction of the one he had
instructed. The tape showing the correct direction had not
fallen off, and the device was not defective. Plaintiff
underwent a remedial procedure on May 24, 2010, which
involved adjusting the Orthofix LRS and manipulation of the
osteotomy site. Defendant distributes the device but was not
involved with the design, manufacture, or testing of the
for reconsideration serve a limited function: to correct
manifest errors of law or fact or to present newly discovered
evidence.” Caisse Nationale de Credit Agricole v.
CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). A
manifest error “is not demonstrated by the
disappointment of the losing party”; it is the
“wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v.
Metropolitan Life Ins., 224 F.3d 601, 606 (7th Cir.
2000) (internal quotation marks omitted).
argues that the Court misapprehended the scope of their
Motion for Summary Judgment and that it moved for summary
judgment on all counts against it. 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 VIII and IX), against Defendant based on
the Orthofix LRS external fixator. The Memorandum Opinion and
Order granted summary judgment in favor of Defendant for
strict liability for manufacturing defects, Count V, and the
failure to warn Count VII, but denied summary judgment for
strict liability for design, Count VI.
Defendant asked for summary judgment on all claims, it did
not provide any specific argument for granting summary
judgment on the negligence and warranty claims. Defendant
argued that Plaintiff could not make out a prima
facie case that the Orthofix LRS had a defective and
unreasonably dangerous condition that existed at the time the
product left the manufacturer's control and proximately
caused the injuries. To the extent that the negligence claim
is based on allegations of a manufacturing defect, as stated
in the Memorandum Opinion and Order, Plaintiff has not
presented any competent evidence that the Orthofix LRS unit
had a manufacturing defect. To the extent that the negligence
claim is based on a failure to warn, as stated in the
Memorandum Opinion and Order, Plaintiff has presented no
facts to show that the manufacturer of the Orthofix LRS
device failed to warn Dr. Abraham of any risks associated
with the device or that Dr. Abraham failed to inform
Plaintiff of any risks. However, to the extent that the
negligence claim is based on manufacturing defects or a
failure to warn, summary judgment is granted as to Count IV.
still fails to address the implied and express warranty
counts. See Little v. Cox's Supermarkets, 71
F.3d 637, 641 (7th Cir.1995) (“[A court] is not
required to scour the party's various submissions to
piece together appropriate arguments. A court need not make
the lawyer's case”). However, to the extent that a
breach of express or implied warranty claim is based on
manufacturing defects or a failure to warn, summary judgment
is granted as to Counts VIII and IX.
also argues that the Court erred in considering the report
and resume of Plaintiff's expert, Dr. Charles A.