Canty v. DePuy Orthopaedics Inc.

Background

Richard and Betsy Canty allege that a defective metal-on-metal hip implant manufactured and sold by the defendants caused Richard Canty various injuries. The opinion states that, after experiencing stiffness and pain and later severe right hip and groin pain, Richard Canty underwent multiple procedures, including revision surgeries involving removal and replacement of the implant.

The plaintiffs asserted claims for negligence; strict products liability based on failure to warn and design defect; fraud and fraudulent concealment; negligent misrepresentation; breach of the implied warranty of merchantability; and loss of consortium by Betsy Canty. The case was originally filed in this court, transferred to a multidistrict litigation court for pretrial coordination, and later returned to this court after the matter did not settle.

Expert-testimony motions

The defendants moved to exclude all or portions of the opinions of Dr. John H. Velyvis and Dr. Albert H. Burstein under Federal Rule of Evidence 702. Rule 702 governs when expert testimony is admissible. The court explained that expert testimony must be based on sufficient facts or data, reliable methods, and a reliable application of those methods to the case. The court also stated that disputes affecting the weight of an expert’s testimony generally should be addressed through cross-examination and contrary evidence rather than exclusion.

The court denied the motion to exclude Dr. Velyvis’s opinions. The defendants challenged his opinions about whether the implant was associated with an increased infection risk, his qualifications to address product defect and regulatory issues, and the basis for his regulatory and training opinions. The court found Dr. Velyvis qualified to testify about causation based on his training and experience as an orthopedic surgeon, his medical and engineering education, his review of medical records and scientific literature, and the evidence he identified concerning Richard Canty’s condition. The court treated challenges to his reliance on scientific publications as issues concerning the weight of his testimony, not its admissibility.

The court also denied the motion to partially exclude Dr. Burstein’s opinions. Dr. Burstein, a biomechanical engineer, was offered to testify about hip-joint mechanics, implant design, debris particles, osteolysis, lubrication, failure analysis, and the defendants’ marketing. The court found persuasive earlier rulings by the multidistrict litigation court addressing the same arguments and adopted that court’s conclusion that Dr. Burstein was qualified to offer the challenged opinions and used reliable methods.

Summary judgment

The defendants moved for summary judgment on claims involving fraud, failure to warn, design defect, breach of the implied warranty of merchantability, and loss of consortium. Summary judgment is a decision entered without a trial when the governing standard is satisfied based on the record.

The court found that the motion was filed late but stated that it would address the merits of the arguments. It rejected the defendants’ contention that the plaintiffs could not prevail because they lacked admissible medical-causation evidence, since the court denied the motions to exclude the experts. Because the plaintiffs had not substantively responded to the other summary-judgment arguments, the court denied the defendants’ summary-judgment motion in part and required additional briefing in part. It set June 18, 2024, as the deadline for the plaintiffs’ opposition and June 28, 2024, as the deadline for any reply. The court stated that the motion would otherwise be resolved on the papers unless it later determined that a hearing was necessary.

Disposition

The court denied the defendants’ motion to exclude Dr. Velyvis’s opinions, denied the defendants’ motion to partially exclude certain opinions of Dr. Burstein, and denied in part the defendants’ motion for summary judgment while requiring additional briefing in part.