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Cochran v. Smith & Nephew, Inc.

United States District Court, C.D. Illinois

May 22, 2017

SMITH & NEPHEW, INC., Defendant.


          James E. Shadid Chief United States District Judge.

         This matter is now before the Court on Defendant's [17] Motion for Summary Judgment. For the reasons set forth below, Defendant's Motion [17] is GRANTED.


         On May 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 their response.”[1]

         The 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).

         The 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.

         Three 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.

         After 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.[2] On October 12, 2016, 2016, SNI filed its answer and affirmative defenses. Doc. 17-7.

         Plaintiff 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.

         Legal Standard

         Summary 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).


         (A) The Statute of Limitations for Products Liability Actions in Illinois

         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 (1995)).

         Illinois 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 …” Id.

         (B) Defendant's Statements of Fact and Plaintiff's Responses

         Here, 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, right?
A. Yes.

Doc. 17-1, at 128.

         Plaintiff's 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 revision surgery?
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 shavings?
A. No.
Q. Did he tell you he did anything wrong?
A. No.
Q. Or did he tell you that there was some defect in the product?
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?
A. No.
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?
A. No.
Q. You didn't go out and research the product manufacturer yourself; you relied on ...

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