Judge Rejects Motion for Summary Judgment in Zimmer Hip Lawsuit
A Louisiana federal judge has rejected Zimmer Inc.’s motion for summary judgment in a Zimmer hip lawsuit, ruling that the issue of whether there was an unreasonable delay in the plaintiff’s filing suit should be left to the fact finder.
U.S. District Judge Jay C. Zainey’s order denied Zimmer’s request that the court rule plaintiff Philip Frank’s Zimmer hip lawsuit was filed outside of Louisiana’s one-year statute of limitations period for product liability claims.
In November 2007, Frank underwent a total hip replacement. He received several Zimmer implants, including a trabecular metal femoral stem, a Versys hip system femoral head, a trabecular metal modular acetabular system shell, and a trilogy acetabular system polyethylene liner.
Frank filled a Zimmer hip lawsuit in March 2012 claiming that pain he experienced from the implants beginning in 2009 was caused by corrosion and other defects in the Zimmer hip components.
Zimmer filed a motion for summary judgment, claiming that Frank should have come forward more than a year before he filed suit, as his symptoms were allegedly caused by his 2009 surgery.
Zimmer Versys hip problems
Prior to denying Zimmer’s summary motion, Judge Zainey reviewed Frank’s medical history, noting that he had x-rays taken in December 2009 that showed nothing that would cause his ongoing pain. The judge noted that Frank went back to his surgeon’s office in February 2009 and August 2010 and his physicians suspected his pain could be caused by back problems.
In October 2010, an orthopedist reported that he could not find a problem with Frank’s hip, and suggested a spinal procedure to aid in diagnosis, the judge added.
Frank contacted Zimmer’s Joint Replacement Help Line in December 2010, after reading a news article, and spoke to a representative about his condition, Judge Zainey said. However, Frank never submitted medical documents requested by the representative.
Eventually Frank did visit an orthopedic surgeon, who performed surgery on March 7, 2011, finding corrosion in and around the Zimmer hip components. The surgeon believed this was the cause of Frank’s ongoing pain, the judge said.
Judge dismisses motion for summary judgment
Judge Zainey explained that he denied Zimmer’s motion for summary judgment, because the doctrine of contra non valentem agere nulla currit praescriptio “prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff.”
The judge added that, “prescription does not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. The precise point in time when prescription begins to run depends on the reasonableness of a plaintiff’s action or inaction. . . . ”
He concluded by saying that a fact finder may determine Frank did not act in an unreasonable manner by not filing his Zimmer hip lawsuit until March 1, 2012. Since Frank sought the professional help of several doctors between December 2009 and December 2010 to try to find the source of his ongoing pain, the judge says his delay may have been reasonable, as he relied on the judgment of professionals before filing his lawsuit.
- Harris Martin, Federal Court Finds Louisiana Plaintiff’s Zimmer Hip Case Timely on Summary Judgment Motion http://harrismartin.com/
- U.S. District Court for the Eastern District of Louisiana, Frank v. Zimmer Inc, et al http://docs.justia.com/cases/federal/district-courts/louisiana/laedce/2:2012cv00559/149649/107/0.pdf?1381576140