Pennsylvania Record

Monday, January 27, 2020

Third Circuit reinstates formerly time-barred lawsuit over Zimmer hip prosthetic device

Federal Court

By Nicholas Malfitano | Dec 12, 2019

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PHILADELPHIA – A federal appellate court has ruled that a woman’s product liability case over a malfunctioning hip prosthesis she was implanted with in 2011 has been reinstated.

On Nov. 20, U.S. Court of Appeals for the Third Circuit judges Thomas L. Ambro and Anthony J. Scirica ruled to reverse the decision of the U.S. District Court for the Eastern District of Pennsylvania, which had initially ruled the claims brought forward by plaintiff Marilyn Adams against Zimmer US, Inc. were untimely, under its statute of limitations. Judge Joseph A. Greenaway Jr. dissented in a 2-1 ruling.

In their reversal, the Third Circuit judges put the statute of limitations issue in the hands of a jury, who must now decide whether Adams was properly noticed of her potential liability claim in January 2015, when her doctor suggested replacement surgery, or in February 2015, when her doctor actually performed the surgery.

After suffering hip pain for years, Adams was diagnosed with advanced degenerative arthritis in 2010. Her orthopedic surgeon, Dr. Prodromos Ververeli, suggested a total hip replacement.

According to her lawsuit, Adams was informed that a hip device manufactured by Zimmer could be expected to last 15-20 years. In January 2011, Adams ultimately decided to have the device implanted into her, to correct her arthritis.

But in late 2012, Adams began experiencing severe hip pain, for reasons initially passing understanding. A revision hip surgery in February 2015 revealed that the Zimmer implant inside Adams’s body had been releasing amounts of allegedly toxic metal debris into Adams’s hip, which had caused her then-recently diagnosed right total hip metallosis.

A ceramic device replaced the Zimmer hip device in the second surgery.

Per the discovery rule in the Commonwealth of Pennsylvania, the start of the statute-of-limitations period is delayed until “a plaintiff or patient knows or reasonably should know that he or she has suffered an injury caused by another.”

In February 2017, Adams filed suit in the U.S. District Court for the Eastern District of Pennsylvania against Zimmer US, Inc., Zimmer Holdings, Inc., Zimmer Inc. and Zimmer Surgical, Inc.

Adams argued she reasonably did not know until February 2015 that the implant caused the injuries for which she filed suit in February 2017, but Zimmer countered that Adams should have discovered her injury when she first agreed to undergo the revision surgery – thereby making the claim untimely.

U.S. District Court Judge Edward Smith ruled last year that Adams’s suit was filed too late, citing the period of time she was aware of issues with the hip device, along with her decision to have a second, revision surgery. The case was then appealed to the Third Circuit.

In a 2-1 majority, the Court opted to reverse the trial court’s ruling.

“The District Court accepted Zimmer’s argument and granted summary judgment on the ground that Adams’s claim was untimely under the discovery rule and two-year statute of limitations,” Scirica said.

“In doing so, however, the District Court resolved issues of fact regarding the timing of Adams’s discovery that her hip pain was caused not by her poor adjustment to the implant but instead by the implant itself. Because Pennsylvania law delegates to a factfinder any genuine dispute over when a plaintiff in Adams’s position should reasonably have discovered her injury, we will reverse and remand.”

Scirica’s opinion spoke for himself and colleague Ambro – while Greenaway Jr. dissented, reinforcing the District Court ruling that Adams knew of the connection between her pain and the prosthetic device before her revision surgery.

“Appellant Marilyn Adams was sadly overwhelmed with right hip pain. What was the source? Her hip prosthesis. When was it apparent to her? Unfortunately for her, days before she asserts – indeed, days before her hip revision surgery,” Greenaway Jr. said.

“As such, she brought this action too late, since she knew of her right hip pain and its connection to the allegedly defective prosthesis before her surgery. Pennsylvania’s discovery rule therefore does not save her cause. Because I cannot steer clear of these facts, I cannot join my friends in the majority. I thus dissent.”

U.S. Court of Appeals for the Third Circuit case 18-3011

U.S. District Court for the Eastern District of Pennsylvania case 5:17-cv-00621

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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U.S. Court of Appeals for the Third CircuitZIMMER BIOMET

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