A Maryland federal judge trimmed the bulk of claims from 175 male patients who received allegedly defective Smith & Nephew Inc. hip implants with 50mm or larger femoral heads, saying only their claims for misrepresentation and breach of express warranty can go forward.
U.S. District Judge Catherine C. Blake said deciding on the latter claims will take a fact-specific analysis of each case, and as such cannot be decided on a motion for summary judgment. Yet claims for failure to warn the U.S. Food and Drug Administration, negligence based on a failure to report, failure to train surgeons, and false advertising got the ax.
The plaintiffs are part of larger multidistrict litigation comprising hundreds of suits from patients who say they received the company’s Birmingham Hip Resurfacing, or BHR, implants and suffered injuries related to them breaking down and metal entering their bloodstreams.
Smith & Nephew had sought summary judgment, arguing the bulk of the MDL’s cases allege issues with implants that have smaller femoral heads, and that the plaintiffs’ experts have not criticized the use of the larger heads and haven’t identified misrepresentations about the risk of needing a replacement in those cases.
Judge Blake, however, noted the plaintiffs have pointed to expert opinions identifying groups of male patients who received the implants with larger femoral heads that are at higher risk of revision, including those with higher body-mass indexes or obesity, those who are over 65, and those who have a condition that cuts off blood supply to the hip bone.
The plaintiffs have argued Smith & Nephew has misled patients and doctors about these increased risks in their voluntary communications.
The court is essentially being asked to “rule on 175 individual summary judgment motions” on the misrepresentation claims, Judge Blake wrote, saying the misrepresentation and breach of warranty claims can go forward, as they will require individual fact-specific inquiries for each plaintiff.
On the other claims, however, the judge wrote that the plaintiffs haven’t offered any argument that would support allowing their claims to proceed, even when given the opportunity at oral argument. Nor did they offer arguments in support of punitive damages, she said.
As such, the judge ruled, summary judgment is appropriate on the claims for failure to warn the FDA, negligence, failure to train and misbranding, as well as the punitive damages.
LAW360: https://www.law360.com/articles/1469111/smith-nephew-gets-claims-trimmed-in-hip-implant-mdl
