United States District Court, C.D. Illinois
ORDER AND OPINION
E. Shadid Chief United States District Judge.
matter is now before the Court on Defendant's  Motion
for Summary Judgment. For the reasons set forth below,
Defendant's Motion  is GRANTED.
8, 2014, Plaintiff Doris Cochran filed a products liability
action against Defendant Smith & Nephew, Inc.
(“SNI”) and four other affiliates in the Circuit
Court of the Tenth Judicial Circuit in Tazewell County,
Illinois. On June 30, 2014, Defendants removed the action to
this Court pursuant to 28 U.S.C. §§ 1441 and 1446.
See Cochran v. Smith & Nephew, Inc., No. 14-1264
(C.D. Ill. 2014). This Court had subject matter jurisdiction
over the action because there was complete diversity of
citizenship among the parties. See 28 U.S.C. § 1332. On
August 15, 2014, Plaintiff voluntarily dismissed all
Defendants except SNI, and on April 29, 2015, this Court
granted Plaintiff's motion to voluntarily dismiss
“in accordance with the record made by Defendants in
instant action was filed by Plaintiff on April 21, 2016,
naming SNI and Neubauer Perkins, Inc. (“NPI”) as
Defendants. Counts 1 and 2 of the Complaint stated claims of
strict and negligent product liability against SNI. Because
Plaintiff and NPI were both alleged to be citizens of
Illinois, the Court ordered Plaintiff to file an amended
complaint alleging an adequate basis for this Court's
jurisdiction. See 28 U.S.C. § 1332(a); Doc. 2. On May 4,
2015, instead of amending the Complaint, Plaintiff filed a
motion to remand. The Court denied that motion on September
15, 2016, and gave the Plaintiff leave to amend her Complaint
to remedy the jurisdictional defect by removing NPI. Doc. 14.
After Plaintiff amended her Complaint, SNI, the only
remaining Defendant, filed a Motion for Summary Judgment
(Doc. 17), to which Plaintiff has responded (Doc. 24).
parties agree that the following, taken from Defendant's
statement of undisputed material facts, are not in dispute.
See Doc. 17, at 2-5. On September 16, 2009, Plaintiff Cochran
underwent a right hip arthroplasty by orthopedic surgeon
Donald Mitzelfelt, M.D. Doc. 17-1, at 18, 60 (Cochran Dep.).
During that procedure, Dr. Mitzelfelt implanted the device at
issue-the Smith & Nephew R3 Acetabular System with R3
Metal Liner-into Ms. Cochran's right hip. Id. at
18. On July 4, 2010, Plaintiff injured her hip (Id.
at 82), and on November 18, 2010, Plaintiff underwent a
revision surgery on her right hip. Id. at 90. Dr.
Mitzelfelt removed the implant at issue and replaced it with
another hip prosthesis. Id.
and a half years later, on May 8, 2014, Plaintiff filed her
original complaint against Smith & Nephew in the Circuit
Court of Tazewell County. Doc. 17-2. On June 30, 2014, Smith
& Nephew removed plaintiff's state court lawsuit to
this Court. Id. at 12. Following removal, discovery
commenced, and on April 21, 2015, defense counsel deposed
Plaintiff. See Doc. 17-2. One day after her deposition, on
April 22, 2015, the Plaintiff filed her Motion for Voluntary
Dismissal. See Doc. 17-3. SNI filed a Response to
Plaintiff's Motion for Voluntary Dismissal, acknowledging
its agreement to the dismissal in order to save costs and
unnecessary expenses, but requesting that: “In the
event Ms. Cochran refiles her lawsuit … discovery be
stayed and the very first and initial matter to be addressed
by the Court be the statute of limitations issue.” Doc.
17-4. On April 29, 2015, the Court granted Plaintiff's
Motion for Voluntary Dismissal “in accordance with the
record made by Defendants in their response.” See
4/29/15 Text Order, Doc. 17-5.
Plaintiff refiled her complaint on April 21, 2016 and the
motion to remand was denied, Plaintiff filed the current
Amended Complaint on September 28, 2016. See Plf's Am.
Comp, Doc. 17-6. Plaintiff's Amended Complaint contains
four counts against Smith & Nephew for strict product
liability, negligent product liability, breach of implied
warranty, and breach of express warranty. On October 12,
2016, 2016, SNI filed its answer and affirmative defenses.
disputes only two of the statements in Defendant's
statement of undisputed facts. First, Plaintiff disputes she
broke her hip on July 4, 2010, or that she knew she had a
claim against SNI on that date. See Doc. 24, at 4 (Plf's
Response). Second, Plaintiff disputes that she knew she had a
claim when she requested to keep the explanted R3 Acetabular
System and its R3 metal liner from her November 2010 revision
surgery. Id. at 10-11.
judgment is appropriate where the movant shows, through
“materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations … admissions, interrogatory
answers, or other materials” 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. In resolving a motion for summary judgment, “[t]he
court has one task and one task only: to decide, based on the
evidence of record, whether there is any material dispute of
fact that requires a trial.” Waldridge v. Am.
Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). When presented with a motion for summary judgment,
the Court must construe the record “in the light most
favorable to the nonmovant and avoid the temptation to
decide which party's version of the facts is more likely
true.” Payne v. Pauley, 337 F.3d 767, 770 (7th
Cir. 2003). If the evidence, however, is “merely
colorable, or is not significantly probative or merely raises
‘some metaphysical doubt as to the material facts,
' summary judgment may be granted.” Liberty
Lobby, 477 U.S. at 249-50. Thus, in order to overcome
the undisputed facts set forth in a defendants' motion
for summary judgment, a plaintiff cannot rest on the
allegations in his complaint but must point to affidavits,
depositions or other evidence of an admissible sort that a
genuine dispute of material fact exists between parties.
Fed.R.Civ.P. 56(e)(2); Behrens v. Pelletier, 516
U.S. 299, 309 (1996).
The Statute of Limitations for Products Liability Actions in
Illinois, the statute of limitations for products liability
actions is set forth in Section 13-213 of the Illinois Code
of Civil Procedure. 735 ILCS 5/13-213. Subsection (d)
provides, in relevant part, “the plaintiff may bring an
action within 2 years after the date on which the claimant
knew, or through the use of reasonable diligence should have
known, of the existence of the personal injury, death or
property damage …” Id. “In
applying the two-year statute of limitations set forth in
section 13-213(d) and similar statutes of limitations,
Illinois courts have adopted a ‘discovery rule, '
which serves to ‘postpone the commencement of the
relevant statute of limitations until the injured plaintiff
knows or reasonably should have known that he has been
injured and that his injury was wrongfully
caused.'” Mitsias v. I-Flow Corp., 2011 IL
App (1st) 101126, ¶ 21, 959 N.E.2d 94, 100 (citing
Golla v. General Motors Corp., 167 Ill.2d 353, 361
courts have elucidated the “wrongfully caused”
standard of the discovery rule and distilled it down to two
elements-cause and wrongfulness. Mitsias, 2011 IL
App (1st) 101126, at ¶ 22. “With regard to the
first element, plaintiff must have sufficient information to
conclude that her injury was caused by the acts of
another.” Id. (citing Nolan v.
Johns-Manville Asbestos, 85 Ill.2d 161, 169 (1981)).
Under the wrongfulness element, “an injured plaintiff
should reasonably know that her injury is wrongfully caused,
and the statute of limitations begins to run, as soon as she
has sufficient information about her injury and its cause to
spark inquiry in a reasonable person as to whether the
conduct of the party who caused her injury might be legally
actionable.” Id. at ¶ 23 (citing
Knox, 88 Ill.2d at 416, 58 Ill.Dec. 725, 430 N.E.2d
at 980). However, “[k]nowledge of ‘wrongful
cause' does not require knowledge on the part of
plaintiff that the defendant's conduct fits the technical
legal definition of negligence or that all the legal elements
of a particular cause of action are otherwise
satisfied.” Id. at ¶ 24. Rather, it
requires “that the plaintiff is or should be aware of
some possible fault on the part of the defendant
Defendant's Statements of Fact and Plaintiff's
Defendant asserts that Plaintiff knew she had a claim against
SNI as early as July 4, 2010. In support, Defendant cites the
following excerpt from Plaintiff's deposition testimony:
Q. Now, you first realized you might have a claim against the
manufacturer back when you thought this thing broke and then
after the revision surgery and you asked to keep those parts,
Doc. 17-1, at 128.
response states that “[t]he Plaintiff denies that this
is an undisputed fact, denies that she broke her hip on July
4, 2010, and responds that there is a genuine issue of
material fact as to what the Plaintiff knew, might have
known, when she might have known, and the date on which she
reasonably knew that she might have been injured and that the
injury was wrongfully caused by the Defendant
…” Doc. 24, at 4. In support, Plaintiff cites at
length to other portions of her deposition transcript:
Q. I would expect that you would have wanted to know from Dr.
Mitzelfelt why this was that you had to go under and have a
A. Ye s .
Q. What did he tell you?
A. He found metal shavings in my body. …
Q. Okay. And did you discuss with him that maybe there was
something wrong with the product that caused those metal
Q. Did he tell you he did anything wrong?
Q. Or did he tell you that there was some defect in the
A. No. (Doc. 17-1, at 50-52).
Q. The components that he ended up using, as you see,
they're metal components. Did you have any conversation
with Dr. Mitzefelt or anyone from his office about the risks
and benefits of using metallic kinds of components before you
had the surgery in September of 2009 on your right hip?
Q. Did you do any independent sort of research on the hip
replacement surgery you were going to have and then had in
September of 2009 before you had the surgery?
Q. You didn't go out and research the product
manufacturer yourself; you relied on ...