Tolman v. Stryker Corporation
640 F. App'x 818
10th Cir.2016Background
- Wallace Tolman suffered a comminuted hip/subtrochanteric femur fracture in an ATV accident; a surgeon implanted a Stryker gamma nail to stabilize the fracture.
- Months later his surgeon permitted partial weight-bearing to promote healing; the nail then fractured and the bone re-fractured, resulting in additional surgeries and permanent injury.
- The Tolmans sued Stryker for negligence, strict products liability, and loss of consortium. The district court granted summary judgment for Stryker on all claims.
- Under Wyoming law, both negligence and strict products-liability claims require proof the product was defective; a plaintiff may rely on an inference of defect but must also exclude reasonable secondary causes of failure.
- Stryker pointed to bone nonunion (delayed or failed healing) as a reasonable secondary cause, citing its warning about device breakage with delayed unions and Mr. Tolman’s medical records diagnosing nonunion after the nail failed.
- The Tolmans disputed the records’ meaning and argued nonunion was not a reasonable secondary cause; they also relied on expert designations that were never deposed and thus produced no admissible expert evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs produced sufficient evidence to infer a defect in the nail | Tolmans: nail failed during normal healing and thus failed in performance — inference of defect is appropriate | Stryker: medical records and warning show nonunion (secondary cause) reasonably explains failure; no specific defect evidence | Affirmed: plaintiffs failed to produce evidence eliminating reasonable secondary causes, so no permissible inference of defect |
| Whether nonunion was a "reasonable secondary cause" that defeats an inference of defect | Tolmans: bones were healing; nonunion was consequence of nail break, not cause | Stryker: contemporaneous medical records diagnosed nonunion and its warning disclosed that delayed/non-unions can cause metal fatigue and breakage | Held Stryker met its burden to show a reasonable secondary cause (nonunion) and record supports that nonunion contributed to failure |
| Admissibility/weight of expert designations as evidence | Tolmans: rely on designated experts to support defect theory | Stryker: plaintiff offered no expert testimony in admissible form; designations alone are not evidence | Court: expert designations are not evidence absent deposition or affidavit; plaintiffs produced no admissible expert opinions |
| Whether loss-of-consortium claim survives if negligence and strict-liability claims fail | Tolmans: relied on underlying tort claims | Stryker: consortium depends on underlying claims | Court: consortium claim fails because negligence and strict-liability claims failed (plaintiffs did not challenge this ruling on appeal) |
Key Cases Cited
- McLaughlin v. Michelin Tire Corp., 778 P.2d 59 (Wyo. 1989) (Wyoming requires proof of defect for negligence and strict products-liability claims)
- Sims v. Gen. Motors Corp., 751 P.2d 357 (Wyo. 1988) (permitting inference of defect but requiring exclusion of reasonable secondary causes)
- Rohde v. Smiths Med., 165 P.3d 433 (Wyo. 2007) (holding mere occurrence of product failure is insufficient; plaintiff must show failure occurred absent reasonable secondary causes)