United States District Court, D. Oregon
FINDINGS & RECOMMENDATION
A. RUSSO, MAGISTRATE JUDGE
Peggy Gitts-Hauck, brings this action asserting a claim for
product liability against defendant Smith & Nephew
pursuant to Or. Rev. Stat. Ann. § 30.920.
Defendant moves for summary judgment (doc. 19).
Plaintiff has not formally opposed the motion and summary
judgment should be granted.
undisputed facts show as follows:
James Ballard performed plaintiff's right knee
replacement surgery with defendant's VKS knee system on
November 24, 2008. Prior to surgery, Dr. Ballard told
plaintiff some patients have complications with the knee
replacement and it was impossible to predict exactly how long
the replacement would last. Deposition of James Ballard at
pp. 9, 19 (attached to Declaration of Kirstin L. Abel (doc.
20) at Ex. C).
Ballard opined that knee implant failure within the first two
years is usually due to infection; failure between years two
and seven is usually due to a “loosening”
episode; and failure beyond seven years is usually due to
natural wear. Id. at p. 21. Plaintiff's implant
failed about six and half years after surgery. Id.
at p. 23.
15, 2015, Dr. Ballard performed revision surgery on
plaintiff's right knee finding the plastic wore off on
the right side of the implant. Id. at pp. 34-35.
Plaintiff's patellar revision was the only one Dr.
Ballard performed involving the VKS system. Id. at
p. 13. Dr. Ballard opined the implant failed because of
excessive force on the lateral side of the knee combined with
the fact he used the smallest patella made for the initial
implant. Id. at p. 36. Dr. Ballard requested the
original implant be sent back to defendant for testing,
however, that did not occur. Id. at p. 42-43. Dr.
Ballard offered no opinion as to whether the device itself
was defective. Id. at p. 41.
The patellar component of Defendant's VKS knee system
which was implanted into plaintiff's right knee in 2008
was faulty and defective due to Defendant's improper
design, inspection, testing, or manufacturing of such
component, and that such defect was the reason that the
component failed. Such defect was the cause of
Plaintiff's pain and mandated the 2015 right knee
Complaint (doc. 1-1) at ¶ 6.
who sells or leases any product in a defective condition
unreasonably dangerous to the user or consumer or to the
property of the user or consumer is subject to liability for
physical harm or damage to property caused by that condition,
(a) The seller or lessor is engaged in the business of
selling or leasing such a product; and
(b) The product is expected to and does reach the user or
consumer without substantial change in the condition in ...