Kee v. Zimmer, Inc.
871 F. Supp. 2d 405
E.D. Pa.2012Background
- Plaintiff Kee had bilateral total knee replacements in 2009 using Zimmer NexGen LPS System designed by Zimmer, Inc.
- Kee later experienced left knee pain and apparent loosening of the tibial component; she underwent revised surgery in 2011.
- Plaintiff filed nine counts in 2011, including strict liability, warranties, UTPCPL, fraud, and punitive damages.
- Defendant Zimmer moved to dismiss non-negligence claims (Counts I-VII, IX) under Pennsylvania law on multiple theories.
- Court applies Pennsylvania law in a diversity context and analyzes whether non-negligence claims survive under comment k and related doctrines.
- Court grants in part: strict-liability, implied-warranty, UTPCPL, fraud, and punitive-damages claims are dismissed; only negligence (Count VIII) remains.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pennsylvania bars strict liability and implied-warranty claims for prescription devices | Kee argues some case-by-case safety analysis would allow non-negligence theories. | Zimmer contends comment k precludes strict liability and implied warranties for prescription devices. | Counts I, II, V, VI dismissed; strict liability and implied warranties barred as a matter of law. |
| Whether plaintiff adequately pleaded notice under 13 Pa. Cons. Stat. Ann. § 2607 | Kee argues she is a buyer/third-party beneficiary with notice implied in pleadings. | Zimmer argues plaintiff failed to plead notice to support breach-of-warranty claims. | Counts VI and VII dismissed for failure to plead notice. |
| Whether UTPCPL claim is barred by learned intermediary doctrine | Kee argues UTPCPL should cover misrepresentations by manufacturer. | Zimmer asserts learned intermediary doctrine breaks reliance and causation chain. | Count III dismissed; UTPCPL not viable against prescription device manufacturer under doctrine. |
| Whether fraud and UTPCPL claims are pleaded with sufficient particularity | Kee alleges concealment and misrepresentation by defendant. | Zimmer contends allegations lack date, place, and specific representations per Rule 9(b). | Counts III and IV dismissed for failure to plead with particularity. |
| Whether punitive-damages claim survives | Kee includes punitive damages demand within relief requested. | Zimmer argues punitive damages require outrageous conduct; negligence alone is insufficient. | Count IX dismissed; punitive damages not demonstrated. |
Key Cases Cited
- Hahn v. Richter, 543 Pa. 558 (Pa. 1996) (adopts comment k exception for unavoidably unsafe products)
- Soufflas v. Zimmer, Inc., 474 F. Supp. 2d 737 (E.D. Pa. 2007) (predicts applying comment k to prescription medical devices)
- Mahripodis v. Merrell-Dow Pharm., Inc., 523 A.2d 374 (Pa. Super. Ct. 1987) (implied warranties precluded for prescription drugs/devices)
- Parkinson v. Guidant Corp., 315 F. Supp. 2d 741 (W.D. Pa. 2004) (predicts exclusion of implied warranty for prescription devices)
- Federico v. Home Depot, 507 F.3d 188 (3d Cir. 2007) (fraud pleading standards; heightened particularity under Rule 9(b))