Rouviere v. Depuy Orthopaedics, Inc.

Background

Jodi Rouviere underwent right hip-replacement surgery in August 2012. The implanted device combined components made by DePuy Orthopaedics, Inc. and Howmedica Osteonics Corp., also known as Stryker. The Rouvieres alleged that the DePuy titanium stem impinged on a Stryker cobalt-chrome liner, releasing toxic metal debris and causing injuries including metallosis. Jodi Rouviere asserted negligence, strict-liability, and express- and implied-warranty claims against DePuy and Stryker. Andre Rouviere asserted a loss-of-consortium claim.

After the Rouvieres’ first engineering expert withdrew, Magistrate Judge Stewart D. Aaron allowed them to obtain a replacement expert but limited that expert to the same subject areas covered by the disqualified expert. The disqualified expert’s report focused almost entirely on Stryker and did not offer opinions that DePuy’s products were defectively designed, defectively manufactured, or inadequately accompanied by warnings. The replacement expert, Dr. John Jarrell, offered extensive opinions about DePuy. Judge Aaron struck those portions of the report and later denied reconsideration.

The Rouvieres objected to those rulings. They also asked to add supplemental reports from Dr. Francis Gannon and Dr. Sol Bobst to the summary-judgment record and sought additional briefing. DePuy moved for summary judgment, which asks whether the evidence would allow a reasonable jury to rule for the opposing party.

Rulings on the Expert Report and Summary-Judgment Record

The court overruled the Rouvieres’ objection to Judge Aaron’s orders at Docket Nos. 232 and 266. The objection to the original order was untimely because the Rouvieres did not object within Rule 72’s 14-day period. Filing a motion for reconsideration before the magistrate judge did not extend that deadline, and the later objection addressed only the denial of reconsideration.

The court nevertheless reviewed the original order in the alternative and held that it was correct. Judge Aaron reasonably interpreted the replacement expert’s permitted scope as limited to the subject areas actually covered by the disqualified expert, which concerned Stryker’s liability. Dr. Jarrell’s new opinions about defects and warnings involving DePuy went beyond that scope. The Rouvieres also failed to show the required good cause for reopening expert discovery to add those opinions.

The motion to supplement the summary-judgment record was granted insofar as it sought to include Dr. Gannon’s and Dr. Bobst’s supplemental reports. The request for additional briefing was denied because those reports concerned pathology, immunology, and toxicology, while DePuy’s motion focused on alleged defects in its product and the adequacy and causal effect of its warnings.

DePuy’s Motion for Summary Judgment

The court granted DePuy summary judgment on all claims against it.

Defective-design claims. Without Dr. Jarrell’s excluded opinions, the Rouvieres had no expert testimony that DePuy’s products were defectively designed and identified no non-expert evidence supporting that theory. The court therefore granted summary judgment for DePuy on the negligence and strict-products-liability claims to the extent they were based on defective design.

Defective-manufacture claims. The Rouvieres did not identify evidence of a manufacturing defect or defend that theory in their opposition brief. The court treated the claim as abandoned and granted summary judgment for DePuy on the negligence and strict-products-liability claims to the extent they were based on defective manufacture.

Warranty claims. The Rouvieres did not respond to DePuy’s arguments concerning the express- and implied-warranty claims. The court treated those claims as abandoned and granted summary judgment to DePuy on both.

Failure-to-warn claims. The court held that a reasonable jury could find that DePuy had a duty to warn about the risk of component impingement involving its stem. The court also held that a reasonable jury could find DePuy’s warnings inadequate. In particular, the instructions for use referred to checking for impingement but did not clearly explain the risk of component impingement after surgery or the possibility of metal debris. The warning against using components from different manufacturers also did not explain that mixing components could cause impingement.

Even so, the court granted summary judgment on the failure-to-warn claims because the Rouvieres lacked evidence of proximate causation—that is, evidence connecting the allegedly inadequate warning to the injury. They offered no evidence that Dr. Buly would have selected different components, recommended against surgery, or given Jodi Rouviere different warnings if DePuy had provided additional information. Dr. Buly testified that he knew about the impingement risk and would continue using the DePuy components and would not give different warnings.

Loss of consortium. Andre Rouviere’s loss-of-consortium claim was derivative of Jodi Rouviere’s claims. Because DePuy received summary judgment on Jodi Rouviere’s claims, the court also granted DePuy summary judgment on the loss-of-consortium claim.

Disposition

The Rouvieres’ objection to Judge Aaron’s orders was overruled. Their motion to supplement the summary-judgment record was granted insofar as it sought to include the Gannon and Bobst reports, but denied insofar as it sought additional briefing. DePuy’s motion for summary judgment was granted as to all claims against it, and the clerk was directed to dismiss DePuy from the case.