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Whybark v. Synthes Inc.

United States District Court, W.D. Kentucky, Paducah Division

May 3, 2017

WILLIAM A. WHYBARK, JR.; and BELINDA A. WHYBARK PLAINTIFFS
v.
SYNTHES, INC. d/b/a SYNTHES LTD. USA; SYNTHES, INC.; DePUY SYNTHES, INC.; JOHNSON & JOHNSON INTERNATIONAL; and JOHNSON & JOHNSON DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Judge.

         This matter comes before the Court on Defendants' Motion for Summary Judgment (DN 35). For the following reasons, the motion is GRANTED.

         I. BACKGROUND

         On 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 35-6).

         Follow-up 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, 75:16-18).

         Whybark 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.

         Defendants subsequently moved for summary judgment, which motion has been fully briefed. (Defs.' Mot. Summ. J., DN 35). Thus, this matter is ripe for adjudication.

         II. JURISDICTION

         The 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 $75, 000.00.

         III. STANDARD OF REVIEW

         In 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).

         While 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 252.

         IV. DISCUSSION

         In 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)).

         A. Design Defect

         A 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 ...


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