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Gitts-Hauck v. Smith & Nephew, Inc.

United States District Court, D. Oregon

January 10, 2019

PEGGY GITTS-HAUCK, Plaintiff,
v.
SMITH & NEPHEW, INC., a Delaware corporation, Defendant.

          FINDINGS & RECOMMENDATION

          JOLIE A. RUSSO, MAGISTRATE JUDGE

         Plaintiff, 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[1] and summary judgment should be granted.

         UNDISPUTED FACTS

         The undisputed facts show as follows:[2]

         Doctor 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).

         Dr. 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.

         On May 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.

         DISCUSSION

         Plaintiff alleges:

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 surgery.

Complaint (doc. 1-1) at ¶ 6.

         (1) One 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, if:

(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 ...

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