United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
HENRY R. WILHOIT, Jr., District Judge.
This matter is before the Court upon Defendants Zimmer Holdings, Inc. and Zimmer, Inc.'s Motion for Summary Judgment [Docket No. 23]. For the reasons set forth below, the Court finds that Defendants are entitled to judgment as matter of law.
This is a products liability and negligence case in which Plaintiff Wilson Johnson alleges that artificial components manufactured by the Defendants Zimmer Holdings, Inc. And Zimmer, Inc. ("Zimmer") caused him to undergo unnecessary surgery and experience appurtenant pain, suffering and distress.
The products implanted in Plaintiff were (1) a Trabecular Metal Femoral Stem (Catalog No. 00-7864-013-00, Lot. 61440948); (2) a Femoral Head (Catalog. No. 8018-36-03, Lot 60884568); (3) a Longevity Liner (Catalog. No. 00-8752-013-36, Lot 61477124); and (4) a Continuum Acetabular Cup (Catalog. No. 00-8757-058-02, Lot 61366142) (collectively, the "Devices"). The Devices were implanted in Plaintiff's left hip on June 7, 2010. After the Devices were implanted, Plaintiff's left hip dislocated at least six times over a two-year period. Due to his repeated dislocations, on June 22, 2012, Plaintiff had a revision surgery to remove and replace the Femoral Stem, Longevity Liner, and Femoral Head in his left hip. The Continuum Acetabular Cup implanted in Plaintiff's original hip replacement surgery remains in place.
This lawsuit followed. Plaintiff claims that the aforementioned Devices are defective in their design, manufacture and lack of adequate warning. In his Complaint, Plaintiff alleges three main causes of action: strict liability, negligence, and breach of warranty.
Per the Court's Scheduling Order, Discovery was to be completed on May 8, 2014. According to the record, Zimmer served written discovery upon Plaintiff in March of 2014. Plaintiff has not served any written discovery upon Defendants nor has he conducted any depositions. The last day to serve written discovery within the established Scheduling Order was April 8, 2014.
Per the Court's Scheduling Order, Plaintiff's Rule 26(a)(2) expert disclosures were due On February 7, 2014 and Defendants' corresponding disclosures and reports on March 7, 2014 for [Docket No. 14]. Plaintiff did not disclose an expert witness. Zimmer served Rule 26(a)(2) expert disclosures and reports on Plaintiff on March 6, 2014. [Docket No. 21].
Zimmerman seeks summary judgment as to all claims against it.
In 1986, the United States Supreme Court set forth the standard for summary judgment in a trilogy of cases: Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), Celotex v. Cartett, 477 U.S. 317. 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Following this precedent and Fed.R.Civ.P. 56(c), the moving party is entitled to judgment as a matter of law when "[t]he pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact." Summary judgment is mandated against a party who has failed to establish an essential element of his or her case after adequate time for discovery. In such a situation, there is no genuine issue of material fact as the failure to prove an essential fact renders all other facts irrelevant. Celotex v. Cartett, 477 U.S. at 322-323.
The United States Court of Appeals for the Sixth Circuit has interpreted the United States Supreme Court's trilogy as requiring the nonmoving party to produce enough evidence, after having had a reasonable opportunity to conduct discovery, so as to withstand a directed verdict motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The non-moving party must present more than a scintilla of evidence to demonstrate each element of a prima facie case. See Van Gorder v. Grand Trunk W. R. R., 509 F.3d 265, 268 (6th Cir. 2007).
This Court has diversity jurisdiction and as such, will apply Kentucky substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Kentucky law, a plaintiff may advance three different causes of actions against a manufacturer: (1) strict liability, (2) negligence, ...