United States District Court, W.D. Kentucky, Paducah Division
WILLIAM A. WHYBARK, JR.; and BELINDA A. WHYBARK PLAINTIFFS
SYNTHES, INC. d/b/a SYNTHES LTD. USA; SYNTHES, INC.; DePUY SYNTHES, INC.; JOHNSON & JOHNSON INTERNATIONAL; and JOHNSON & JOHNSON DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge.
matter comes before the Court on Defendants' Motion for
Summary Judgment (DN 35). For the following reasons, the
motion is GRANTED.
December 30, 2013, Plaintiff William Whybark, Jr.
(“Whybark”) underwent surgery to correct an
osteoarthritis issue in his left foot at Vanderbilt Medical
Center. (Pls.' Resp. Defs.' Mot. Summ. J. Ex. A, DN
36-1). During the surgery, Dr. David Trenner, D.P.M.
(“Dr. Trenner”) implanted a Synthes 02.226.740
4.5 mm headless compression bone screw (“Synthes
screw”) in Whybark's first metacarpal joint.
(Trenner Dep. 20:10-14, 27:15-18, 34:7-15, May 10, 2016, DN
examinations in the two months post-surgery revealed that
Whybark's bones were in the process of healing, but not
yet fully healed. (Trenner Dep. 54:21-55:9, 57:3-6). On April
11, 2014, Whybark returned to Dr. Trenner complaining of pain
and an x-ray revealed pseudoarthrosis (nonunion) of the bones
and that the Synthes screw had fractured. (Trenner Dep.
58:24-59:18). Consequently, an additional surgery was
performed to remove part of the broken screw and place new
hardware in Whybark's left foot. (Trenner Dep. 74:4-25,
and his wife, Belinda Whybark, (collectively
“Plaintiffs”) brought this action in this Court
against Defendants Synthes, Inc. d/b/a Synthes Ltd. (USA),
Synthes, Inc., DePuy Synthes, Inc., Johnson & Johnson
International, and Johnson & Johnson (collectively
“Defendants”) asserting state law claims for
negligence, strict liability, and loss of consortium. (Compl.
¶¶ 12-30). During discovery, Dr. Trenner testified
that he suspected the breakage of the Synthes screw was due
to a manufacturing defect because he had never seen a bone
screw break after surgery. (Trenner Dep. 64:15-22, 65:3-14).
Michael Roach, Ph.D. (“Dr. Roach”), a
metallurgist and biomedical engineer with expertise in
fracture fixation device metals and failure analysis, opined
that the Synthes screw met industry standards and that there
were no defects in the design or manufacturing of the screw.
(Defs.' Mot. Summ. J. Ex 7, 11, DN 35-8 [hereinafter
Roach Report]). Dr. Roach further expressed his opinion that
the Synthes screw failed from delayed healing of the bones
which caused a fatigue fracture of the screw. (Roach Report
11). Michael Castro, D.O. (“Dr. Castro”), a
board-certified foot and ankle surgeon, opined that the screw
design was safe and effective; that the screw broke as a
result of non-healing; and that Whybark likely would have
required a second surgery even if the screw had not broken.
(Defs' Mot. Summ. J. Ex. 8, 5-6, DN 35-9 [hereinafter
Castro Report]). Further, Dr. Castro stated that Dr.
Trenner's testimony about a possible manufacturing defect
has no scientific basis, is contrary to generally accepted
orthopedic and biomechanical standards, and is not support by
ay peer-review literature. (Castro Report 6). Plaintiffs
presented no expert proof other than Dr. Trenner's
testimony that he had never seen a screw break before.
subsequently moved for summary judgment, which motion has
been fully briefed. (Defs.' Mot. Summ. J., DN 35). Thus,
this matter is ripe for adjudication.
Court has subject matter jurisdiction over this action under
28 U.S.C. § 1332 as there is complete diversity between
the parties and the amount in controversy exceeds the sum of
STANDARD OF REVIEW
ruling on a motion for summary judgment, the Court must
determine whether there is any genuine issue of material fact
that would preclude entry of judgment for the moving party as
a matter of law. See Fed. R. Civ. P. 56(a). The
moving party bears the initial burden stating the basis for
the motion and identifying evidence in the record that
demonstrates an absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). If the moving party satisfies its burden, the
non-moving party must then produce specific evidence
establishing the existence of a genuine issue of fact for
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986).
the Court must view the evidence in the light most favorable
to the non-moving party, the non-moving party must do more
than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (citation omitted). Rather, the non-moving party must
present specific facts proving that a genuine factual issue
exists by “citing to particular parts of the materials
in the record” or by “showing that the materials
cited do not establish the absence . . . of a genuine
dispute.” Fed.R.Civ.P. 56(c)(1). “The mere
existence of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient; there
must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at
Kentucky, product liability actions are governed by the
Kentucky Product Liability Act (“KPLA”), KRS
411.300-411.350. “Kentucky law recognizes three
theories of product liability: (1) defective design, (2)
defective manufacture, and (3) failure to warn.”
Prather v. Abbott Labs., 960 F.Supp.2d 700, 705-06
(W.D. Ky. 2013) (citing Clark v. Hauck Mfg. Co., 910
S.W.2d 247, 251 (Ky. 1995), overruled on other grounds by
Martin v. Ohio Cty. Hosp. Corp., 295 S.W.3d 104 (Ky.
2009)). Regardless of the theory of recovery, Kentucky law
requires proof of a product defect, and legal causation.
McCoy v. Gen. Motors Corp., 47 F.Supp.2d 838, 839
(E.D. Ky. 1998); Williams v. Fulmer, 695 S.W.2d 411,
413 (Ky. 1985); Morales v. Am. Honda Motor Co.,
Inc., 71 F.3d 531, 537 (6th Cir. 1995) (citing
Huffman v. SS. Mary & Elizabeth Hosp., 475
S.W.2d 631, 633 (Ky. 1972)).
product design is defective if it creates such a risk of
injury that an ordinarily prudent manufacturer, being aware
of the risk, would not have put it on the market. C &
S Fuel, Inc. v. Clark Equip. Co., 552 F.Supp. 340,
344-45 (E.D. Ky. 1982); Nichols v. Union Underwear
Co., 602 S.W.2d 429, 433 (Ky. 1980). There is no
evidence of a design defect in this case. In fact, Dr.
Trenner testified that the screw design was safe and
effective. (Trenner Dep. 43:17-20). Plaintiffs have not
responded to the Defendant's request for summary judgment
as to this theory of relief. Therefore, Plaintiffs'
claims brought under a theory of design defect fail as a
matter of law. See McCartt v. Kellogg USA, Inc., 139
F.Supp.3d 843, 854 (E.D. Ky. 2015) (“A plaintiff
abandons claims that he fails to brief before the district
court. As a ...