560 F.Supp.3d 774
S.D.N.Y.2021Background
- In August 2012 Jodi Rouviere received a total right hip replacement composed of a DePuy Summit titanium femoral stem with a DePuy Biolox ceramic head, plus Stryker acetabular components (titanium shell and cobalt‑chrome liner) and a Stryker polyethylene insert.
- By 2016 Rouviere experienced pain and revisions; surgeons observed a notch on the DePuy stem and metallotic tissue; components were ultimately removed.
- The Rouvieres sued DePuy and Stryker (May 2018) for negligence, strict products liability, and breach of warranties, alleging component impingement released toxic metal debris.
- Expert‑disclosure dispute: plaintiffs’ initial engineer withdrew; a second engineer (focused on Stryker) was disqualified; a third engineer (Jarrell) offered DePuy‑related opinions but Magistrate Judge Aaron limited replacement expert testimony to the scope of the disqualified report and struck Jarrell’s DePuy opinions.
- Magistrate allowed supplemental pathology and toxicology reports (Gannon, Bobst) after discovery issues; DePuy moved for summary judgment. The District Court admitted the supplemental reports but excluded Jarrell’s DePuy opinions and granted summary judgment for DePuy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Objection to magistrate order striking Jarrell’s DePuy opinions | Rouvieres: Magistrate erred; Jarrell could opine on DePuy | DePuy: objection untimely under Rule 72(a); Jarrell exceeded permitted scope | Objection overruled as untimely; on the merits Magistrate’s exclusion affirmed; DePuy opinions excluded |
| Scope of replacement expert and Rule 16 good‑cause for extension | Jarrell’s report was within the parties’ scope of retention and should be admitted | Replacement exceeded the actual subject areas covered by the disqualified expert; plaintiffs lacked diligence and good cause | Magistrate reasonably limited replacement expert to subject areas actually covered by the disqualified report and properly denied reopening expert discovery |
| Supplementation of record with Gannon and Bobst reports | Plaintiffs: allow supplementation because Stryker withheld materials | DePuy: supplemental reports irrelevant to DePuy summary‑judgment motion | Court admitted the Gannon and Bobst supplemental reports into the summary‑judgment record but denied further briefing as those reports did not affect DePuy’s motion |
| Merits: design / manufacture / warranty / failure‑to‑warn and causation | Plaintiffs: DePuy stem defectively impinged, released metal debris, and failed to warn causing injuries and metallosis | DePuy: no DePuy‑specific expert evidence on design/manufacture; plaintiffs abandoned some claims; even if warnings were inadequate, plaintiffs cannot show proximate causation | Summary judgment for DePuy: design/manufacture/warranty claims abandoned or lack expert proof; failure‑to‑warn—factual dispute on adequacy but no evidence that additional warnings would have changed surgeon’s or patient’s decision (no proximate causation); all claims against DePuy dismissed |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary‑judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (allocation of burdens on summary judgment)
- In re New York City Asbestos Litig., 27 N.Y.3d 765 (duty‑to‑warn framework and factors)
- Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289 (no duty to warn about third‑party product unless combination creates danger)
- Martin v. Hacker, 83 N.Y.2d 1 (adequacy of warnings standard)
- Fane v. Zimmer, Inc., 927 F.2d 124 (learned intermediary doctrine)
- Raney v. Owens‑Illinois, Inc., 897 F.2d 94 (limitations on heeding‑presumption in failure‑to‑warn cases)