Bosley v. DePuy Synthes Sales Inc
2:21-cv-01683
W.D. Wash.Oct 3, 2023Background
- Plaintiff Derrick C. Bosley, Sr. underwent right TKA with the ATTUNE® Knee System (Oct. 2, 2013) and left TKA with the ATTUNE® Knee System (Aug. 13, 2014).
- After left-knee complaints and imaging in January 2019, Dr. Barrett recommended and performed a revision on March 19, 2019 removing the implanted ATTUNE® tibial component for "failed fixation."
- Plaintiff alleges Washington Product Liability Act claims: unsafe design / strict liability (First Cause) and failure to warn (Fifth Cause) regarding the tibial component.
- Defendants (various DePuy/Johnson & Johnson entities) assert multiple defenses including failure to state a claim, lack of causation, assumption of risk, compliance with regulations, learned intermediary doctrine, comparative negligence, statute(s) of limitation/repose, Buckman preemption, and Daubert challenges to Plaintiff’s experts.
- Plaintiff’s retained experts include Dr. Peter Bonutti (orthopedics) and Michael Arrigo (pain care); Defendants’ experts include Dr. Michael Ries and Dr. Chantal Holy. Defendants have a pending motion to exclude Dr. Bonutti’s opinions.
- Procedural posture: diversity jurisdiction; Defendants’ summary-judgment motion (including learned-intermediary issue) and Daubert motion are pending; jury trial was scheduled for Oct. 10, 2023 per this Pretrial Order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Design defect under WPLA (tibial component) | Bosley: tibial base was defectively designed and not reasonably safe, causing loosening/failed fixation | DePuy: device met state of the art, regulations, and did not legally cause the injury; multiple alternative causes | To be determined (trial/summary judgment pending) |
| Failure to warn under WPLA / duty scope | Bosley: Defendants failed to warn medical community and surgeon of risks tied to tibial base | DePuy: duty limited by learned intermediary doctrine; any warnings were adequate; Buckman/FDA preemption arguments preserved | To be determined (learned intermediary issue pending on summary judgment) |
| Statute(s) of limitation / repose | Bosley: disputes that claims are time-barred (objects to issue being listed) | DePuy: asserts applicable statutes of limitation/repose bar claims | To be determined (disputed) |
| Expert admissibility (Dr. Bonutti) | Bosley: Bonutti is qualified and will offer causation/design opinions | DePuy: moved to exclude Bonutti under Daubert / FRE 702 | Pending (Daubert motion unresolved) |
Key Cases Cited
- Bruns v. PACCAR, Inc., 890 P.2d 469 (Wash. Ct. App. 1995) (addresses reliability of expert testimony in product-liability causation)
- Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001) (preemption of state-law claims alleging fraud-on-the-FDA)
- Hahn v. Richter, 673 A.2d 888 (Pa. 1996) (discusses Comment k / unavoidably unsafe doctrine in product liability)