Stryker (NYSE:SYK) can’t dodge product liability, negligence and loss of consortium charges in a personal injury lawsuit filed over its recalled Trident hip implant, but a breach of warranty count is dropped due to the statute of limitations, a federal judge ruled this month.
Peter Cerqua and his wife Mary Lou Cerqua sued Stryker in 2011, alleging that the Trident implant in Peter Cerqua’s left hip failed because it was defective. Although Cerqua’s replacement hip procedures occurred in 2004, the device was not removed until 2009 because his doctor believed the pain he experienced was normal, according to court documents.
Judge Katherine Forrest of the U.S. District Court for Southern New York ruled that although the lawsuit was filed long after the implantation, a jury could conclude that the suit falls within New York’s 3-year statute of limitations for product negligence and liability.
"On the basis of the record before this court, a reasonable jury could find any of the following: that Cerqua did or should have discovered the "primary condition" behind his claim immediately after the 2004 surgery, during the period from 2004-2007 when he sought medical advice, after the 2008 knee replacement failed to alleviate the hip pain, or in 2009 when the pain intensified or he underwent the revision surgery. At the summary judgment stage, this Court cannot choose among these competing alternatives," Forrest wrote, according to the documents. "Accordingly, defendants’ statute of limitations argument fails."
But Stryker’s move to bar the breach of warranty count survived because its 4-year statute of limitations kicks in "at the date the product is sold or placed into the stream of commerce," or at the time of the 2004 surgery, Forrest ruled.
"The latest possible date such an action could have been timely in this case was in November 2008, 4 years after the implantation of the device," the judge wrote.
Stryker had also argued that the loss of consortium charge should be dropped because it depends on the prior counts. That move, too, failed, Forrest ruled.
"Defendants’ only argument in favor of summary judgment on the loss of consortium count is that, should the first 3 counts be dismissed on summary judgment, the loss of consortium count would necessarily fail," she wrote. "Since defendant is not entitled to summary judgment on the strict liability and negligence counts, the loss of consortium count remains viable."
Forrest set a Feb. 11, 2013 date for a 1-week jury trial.