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Device Maker Gains Defense Verdict in Hip Implant Case

By Max Mitchell
November 8, 2016
National Law Journal

Device Maker Gains Defense Verdict in Hip Implant Case

By Max Mitchell
November 8, 2016
National Law Journal

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Matt Taylor

Matthew Taylor

Dana Ash

Dana Ash

Scott Kramer

J. Scott Kramer

After several high-profile plaintiff's victories in hip implant cases, a Missouri jury has cleared a hip device manufacturer of allegations that its metal-on-metal device was defective.

A jury in the Circuit Court of St. Louis County recently found in favor of Wright Medical Technology, rejecting claims that its ProFemur hip implant system was defectively designed and that the company did not provide adequate warnings about the possibility of the device failing.

James Lightman, general counsel for Wright Medical, said in an emailed statement the company was pleased with the verdict.

"The jury was attentive, weighed the evidence carefully, and recognized that implanting surgeons are well aware of the risks and benefits associated with various medical devices and attempt to provide the best device for each patient's particular clinical circumstances and lifestyle needs," Lightman said.

Matthew Taylor, Dana Ash and J. Scott Kramer of Duane Morris tried the case for Wright Medical.

J. Michael Ponder of Cook Barkett Ponder & Wolz in Cape Girardeau, Missouri, represented the plaintiff Donald Deline. Ponder did not return a call for comment.

According to court documents, in September 2011, Dr. Paul Lux installed Wright Medical's hip system in Deline, who worked as a farmer and crop consultant. Deline recovered well from the surgery for several months, but began reporting pain in his hip after an incident where he had to lunge to keep his dog from running away. The pain continued until he had a revision surgery in December 2013, court documents said.

Deline contended that ions released by the metal-on-metal device caused him to develop a painful pseudotumor, which is what necessitated the revision surgery. He made a medical malpractice claim against Lux and products liability claims against Wright medical.

Deline alleged that Wright Medical knew that there was a high fail rate of the metal-on-metal hip implant system, but failed to properly inform Lux about the risks. In a response to a summary judgment motion, Deline said an article came out in 2010 suggesting serious problems with the device, and said Lux had expressed concerns over the article. However, Wright told Lux the article was false and responded with an editorial in the publication, Deline said in the filing.

Deline further alleged the warnings were inadequate, and were not placed on the appropriate packaging, but only on a portion that was typically thrown out by attending nurses before the surgeons ever have a chance to review it.

Regarding the medical malpractice claim, Deline noted that Lux had been a consultant for Wright, and had designed a part in a hip implant system for which he received royalty payments. Deline contended that Lux should have told him about his relationship with Wright Medical.

Wright, however, contended that the pseudotumor had been caused by hypersensitivity, or a rare allergic reaction to the device, and not excessive wear on the metal. The device maker also argued the ions in Deline's blood were within the normal range, and that its warnings were adequate. In a motion for summary judgment filed by Kevin Hormuth of Greensfelder, Hemker & Gale, Wright Medical further contended that Lux was very familiar with the device, so the learned intermediary doctrine would mean the company could not be held liable.

Lux, in a motion in limine, contended that his consulting relationship with Wright Medical stopped several months before he implanted the device in Deline, and that he did not receive royalties for the device that Deline received.

According to Lux's attorney, J. Thaddeus Eckenrode of Eckenrode-Maupin in St. Louis, the claims against Lux were clearly rejected by the jury.

"We had a good expert witness on his behalf, and we think the plaintiff's expert was not that persuasive," Eckenrode said. "Our client obviously was an intelligent guy, and it came across that he cared about his patients."

The defense verdict came down after numerous similar cases ended in multimillion-dollar awards for plaintiffs, including an $11 million verdict in Atlanta in 2015 and a $9 million award in federal court that was eventually reduced to $2.1 million. Also, several days before Wright Medical's win, the company agreed to pay $240 million to settle about 1,300 claims associated with hip implant failures.

Reprinted with permission from The National Law Journal, © ALM Media Properties LLC. All rights reserved.