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Janusz v. Symmetry Medical Inc.

United States District Court, E.D. Wisconsin

June 9, 2017

JEROME JANUSZ, et al., Plaintiffs,
v.
SYMMETRY MEDICAL INC., et al., Defendants.

          DECISION AND ORDER

          WILLIAM E. DUFFIN, U.S. Magistrate Judge

         I. Introduction

         Plaintiffs Jerome Janusz, Sharon Janusz, and Patrice Jardanowski filed the present action against various entities, including Symmetry Medical, Inc. (Symmetry), which was allegedly involved in the design, testing, manufacture, sale, distribution, marketing, or similar actions of the M-Cor Modular Hip System. (ECF No. 68.) Mr. Janusz and Ms. Jardanowski both underwent hip replacement surgery and both contend that the M-Cor neck portion of the artificial hip system broke, requiring additional surgeries to replace the hip system installed.

         Symmetry seeks summary judgment on the plaintiffs' claims against it, arguing that it “played no role in the design, development, or testing of the femoral neck component or the M-Cor System and its related warnings and instructions.” (ECF No. 92, ¶ 3.) Rather, it contends, it “manufactured femoral neck components pursuant to detailed product specifications provided by Portland Orthopedics Limited.” (ECF No. 92, ¶ 2.)

         Following significant delays related to questions regarding the status of involuntary plaintiffs in this action, the motion is now ready for resolution. All parties have consented to have this court resolve this matter. (ECF Nos. 5, 62, 64, 99, 121, 129.) The court has subject matter jurisdiction based upon the diversity of the parties. (ECF No. 105; see also ECF No. 127, ¶¶ 1-5.)

         II. Facts

         Although the plaintiffs responded to Symmetry's motion with their own proposed findings of fact (ECF No. 111) (to which Symmetry responded (ECF No. 116)), the plaintiffs did not respond to Symmetry's proposed findings of fact (ECF No. 92). Therefore, in accordance with Fed.R.Civ.P. 56(e)(2), the court accepts each of Symmetry's proposed facts as undisputed for purposes of Symmetry's motion.[1]

         Symmetry is a contract manufacturer of medical devices and orthopedic implants. (ECF No. 92, ¶ 1.) Beginning in 2006 it manufactured femoral neck components pursuant to detailed product specifications provided by Portland Orthopedics Limited (Portland) for Portland's M-Cor Modular Hip System. (ECF No. 92, ¶ 2.) Portland supplied Symmetry with certain design documents. (ECF No. 116, ¶ 4.3.) One of the design documents provided by Portland to Symmetry stated that the femoral necks were to be manufactured from “ASTM F136 Ti 6AI 4V ELI Wrought Alloy material.” (ECF No. 116, ¶ 5.1.) Another design document provided by Portland to Symmetry stated that the material to be used in the femoral necks was “ASTM F136 Ti 6AI 4V ELI Wrought Alloy Bar Stock.” (Id.) Symmetry manufactured Portland's femoral neck components from “ASTM F136 Ti 6AI 4V ELI Wrought Alloy Rolled Plate” stock. (ECF No. 116, ¶ 5.2.)

         Symmetry played no role in the design, development or testing of the femoral neck component or the M-Cor System and its related warnings and instructions. (ECF No. 92, ¶ 3.) Symmetry was not involved and had no control regarding the integration of the femoral neck component into the M-Cor System. (ECF No. 92, ¶ 4.)

         Plaintiff Jerome Janusz underwent total right hip replacement surgery on April 21, 2009. (ECF No. 116, ¶ 2.1.) On June 16, 2009, plaintiff Patrice Jardanowski underwent total left hip replacement surgery. (ECF No. 116, ¶ 1.1.) In each case the surgeon implanted Portland's M-Cor Modular Hip System, which included an M-Cor neck manufactured by Symmetry. (ECF No. 116, ¶¶ 1.2, 2.1; ECF No. 92, ¶¶ 6, 9.) Symmetry manufactured both necks out of raw materials that it purchased. (ECF No. 116, ¶ 4.8.) Roughly three years after their surgeries both Janusz and Jardanowski underwent a total hip revision to replace the artificial hip systems. (ECF No. 116, ¶¶ 1.3, 1.5, 2.3, 2.5.) Janusz and Jardanowski allege that their second surgeries were necessary because the M-Cor neck portion of the artificial hip system broke. (ECF No. 116, ¶¶ 1.6, 2.4.)

         Symmetry admits that it manufactured the femoral neck component used in the Jardanowski and Janusz hip replacements. (ECF No. 92, ¶¶ 6, 9.) Symmetry shipped the femoral neck components it manufactured directly to Portland. (ECF No. 92, ¶¶ 7, 10.) Before it did so, it inspected, tested and certified that the femoral neck components were manufactured in conformity with the specifications and instructions from Portland. (ECF No. 92, ¶¶ 8, 11.)

         Portland went bankrupt in 2009. (ECF No. 116, ¶ 4.1.)

         III. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it “might affect the outcome of the suit” and a dispute is “genuine” only if a reasonable finder of fact could accept the non-moving party's position and return a verdict in its favor. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). In resolving a motion for summary judgment, the court is to “construe all evidence and draw all reasonable inferences from that evidence in” favor of the non-movant. E.Y. v. United States, 758 F.3d 861, 863 (7th Cir. 2014) (citing Gil v. Reed, 535 F.3d 551, 556 (7th Cir. 2008)); Del Raso v. United States, 244 F.3d 567, 570 (7th Cir. 2001). The “court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Washington v. Haupert, 481 F.3d 543, 550 (7th Cir. 2007) (quoting Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). “To survive summary judgment, the nonmovant must produce sufficient admissible evidence, taken in the light most favorable to it, to return a jury verdict in its favor.” Fleishman v. Cont'l Cas. Co., 698 F.3d 598, 603 (7th Cir. 2012) (quoting Berry v. Chi. Transit Auth., 618 F.3d 688, 690-91 (7th Cir. 2010)).

         IV. Analysis

         Symmetry argues that, because it manufactured the femoral neck components in accordance with Portland's specifications, it cannot be found liable for any injuries the plaintiffs may have suffered. It was Portland who designed, developed, and tested the femoral neck component. That component was then incorporated into a final product. Moreover, the plaintiffs cannot sustain a breach of warranty claim against Symmetry because there is no privity between Symmetry and the plaintiffs. Nor can the plaintiffs point to any misrepresentation that Symmetry allegedly made. Finally, the plaintiffs' attempts to raise claims under various Wisconsin consumer protection statutes fail because the statutes do not provide for a private cause of action.

         For these reasons, Symmetry seeks summary judgment with respect to the plaintiffs' claims for negligence (ECF No. 68, ¶¶ 50-54), “defendants' strict liability as manufacturers” (ECF No. 68, ¶¶ 55-65), “defendants' strict liability as seller or distributor” (ECF No. 68, ¶¶66-69), “breach of express warranty” (ECF No. 68, ¶¶ 70-74), “breach of implied warranty of merchantability” (ECF No. 68, ¶¶ 75-77), “breach of implied warranty of fitness” (ECF No. 68, ¶¶ 78-80), “negligent misrepresentation” (ECF No. 68, ¶¶ 81-85), “fraud” (ECF No. 68, ¶¶ 86-92), “fraudulent misrepresentation” (ECF No. 68, ¶¶ 93-95), “unfair methods of competition and trade practices” (ECF No. 68, ¶¶ 96-98), “violations against elderly or disabled persons” (ECF No. 68, ¶¶ 99-101), and “product safety act violation” (ECF No. 68, ¶¶ 102-104). To the extent they might be independent claims, in its motion Symmetry does not explicitly address the plaintiffs' claims regarding “successor liability” (ECF No. 68, ¶¶ 105-06), “res ipsa loquitor, ” (ECF No. 68, ¶¶ 107-10), “acting in concert” (ECF No. 68, ¶¶ 111-12), “agency” (ECF No. 68, ¶¶ 113-15), or “vicarious liability” (ECF No. 68, ¶¶ 116-20).

         In response the plaintiffs argue that, as a manufacturer of the component that failed, Symmetry is strictly liable for all design and manufacturing defects. The plaintiffs separately argue that their negligence claims against Symmetry should not be dismissed because facts adduced so far could support a conclusion that Symmetry was negligent. The plaintiffs do not respond to Symmetry's other arguments in favor of summary judgment. Therefore, the court will grant Symmetry's motion for summary judgment with respect to the plaintiffs' claims alleging “breach of express warranty” (ECF No. 68, ¶¶ 70-74), “breach of implied warranty of merchantability” (ECF No. 68, ¶¶ 75-77), “breach of implied warranty of fitness” (ECF No. 68, ¶¶ 78-80), “negligent misrepresentation” (ECF No. 68, ¶¶ 81-85), “fraud” (ECF No. 68, ¶¶ 86-92), “fraudulent misrepresentation” (ECF No. 68, ¶¶ 93-95), “unfair methods of competition and trade practices” (ECF No. 68, ¶¶ 96-98), “violations against elderly or disabled persons” (ECF No. 68, ¶¶ 99-101), and “product safety act violation” (ECF No. 68, ¶¶ 102-104).

         The plaintiffs requested that the court hold off on deciding Symmetry's motion for summary judgment as to the manufacturing defect claims until after the close of expert discovery because that discovery is likely to bear upon the issue. In reply, Symmetry does not oppose this request. (ECF No. 117 at 2.) Expert discovery is not scheduled to be completed until September 21, 2017. (ECF No. 42.) For administrative reasons the court is unable to simply defer ruling on the motion for that ...


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