Products Liability Law Reporter

A federal district court held that the issue of when a plaintiff experienced pain that was attributable to her hip implant was a question of fact that precluded summary judgment on limitations grounds in a products liability lawsuit.

Lisa Dood was surgically implanted with a Biomet Orthopedics hip implant device in 2006. In 2012, she began to experience pain in her right quad and sought treatment from a physician and a physical therapist. The physical therapist allegedly believed that the hip implant surgery itself may have weakened Dood’s tendons and muscles, and the physician allegedly advised that the pain resulted from either tendinitis or spinal issues. By 2014, Dood’s pain had migrated to her right hip. She consulted another physician that year, who advised Dood that her pain might have resulted from her hip implant. The physician also noted that Dood’s legs, which were different lengths, were another potential source of her pain. After subsequent testing showed that Dood had slightly elevated levels of cobalt and chromium in her blood, she underwent surgical removal of her hip implant in April 2014.

On July 14, 2016, Dood filed suit against Biomet Orthopedics, L.L.C., alleging seven causes of action. Her spouse also brought a claim for loss of consortium. The defense moved for summary judgment, arguing that the plaintiffs’ claims were time-barred.

Denying summary judgment on six of the eight claims, the court noted that in Michigan, a claim for personal injury must be brought within three years, adding that such claims accrue at the time of injury—even where a plaintiff is unsure of the source of the injury. Citing case law, the court noted that Michigan has abolished application of the common law discovery rule to personal injury claims, and the rule is applied only where state law expressly provides. Thus, the court said, the plaintiff’s claim accrued when her implant began to cause her pain, an issue of material fact.

The court found that Dood’s pain had changed over time, migrating from her right quad to her hip over a two-year period. Her medical providers had offered multiple potential causes for her pain, which ranged from the surgery itself to leg length difference to muscle atrophy, the court said. Thus, the court held that a reasonable juror could find that the hip implant did not harm Dood before July 14, 2013, if a jury finds the implant defective at all, and a reasonable juror could conclude that the implant did not fail until 2014.

Consequently, the court concluded that summary judgment on limitations grounds for all but two of the plaintiffs’ claims was not warranted.

Citation: Dood v. Biomet Orthopedics, L.L.C., 2020 WL 6390201 (W.D. Mich. Nov. 2, 2020).

Plaintiff counsel: Adam J. Brody, Peter A. Smit, and Seth B. Arthur, all of Grand Rapids, Mich.