Products Liability Law Reporter

Kline v. Zimmer, Inc., No. BC444834 (Cal. Super. Ct. Los Angeles Cnty. July 29, 2019).

When Gary Kline, 51, required a hip replacement, his orthopedic surgeon reportedly told him that he would regain at least 98% of normal hip function after undergoing implantation of the metal-on-metal Zimmer, Inc., Durom Hip Resurfacing System, including the Zimmer “Durom Cup.” After the surgery, however, Kline experienced stabbing pains so severe he could not move his leg. He underwent a revision surgery within 15 months but still experiences pain and physical limitations due to residual scar tissue and muscle damage.

Kline sued Zimmer, Inc., alleging it failed to test the Durom Cup after altering its plasma coating before rushing the product to market in the United States. The plaintiff also asserted that the defendant failed to warn physicians that the device could become loose.

The plaintiff received a verdict in his favor in 2015. An appellate court affirmed the liability verdict but remanded for a retrial on damages. The jury awarded $7.68 million. The award includes more than $80,400 in past economic losses, $3.6 million in past noneconomic damages, and $4 million in future noneconomic damages.

Plaintiff counsel: AAJ member Gary M. Paul, El Segundo, Calif.; and AAJ member Gibbs Henderson, Dallas.

Comment: In Buff-Thompson v. Smith & Nephew, Inc., 2019 WL 4394736 (C.D. Ill. Sept. 13, 2019), Kristi Buff-Thompson underwent a hip replacement using a Smith & Nephew device. She required additional surgeries after suffering severe pain and discomfort after the first procedure. She sued Smith & Nephew, Inc., alleging strict products liability, breach of warranty, and negligence. The defendant moved to dismiss for failure to state a claim. The trial court found that the plaintiff had sufficiently alleged each element of a strict products liability claim by claiming that the product’s failure, specifically its femoral head and acetabular component, led to her need for additional surgeries. The court also concluded that the plaintiff had failed to rebut the defendant’s arguments regarding negligence and failed to allege the condition that made the defendant’s product unmerchantable at the time of sale. Consequently, the court granted the plaintiff 21 days to file an amended complaint. Patrick E. Halliday of Peoria, Ill., represented the plaintiff.