Pennsylvania Court Dismisses All but One of Plaintiff’s Counts Against Zimmer
On August 24, 2011, Marina Kee filed a Zimmer NexGen CR lawsuit against Zimmer, Inc. in the Court of Common Pleas of Philadelphia Country. In her complaint, she brought nine counts, including defective design, failure to warn, fraud, breach of warranties, and negligent design and manufacture.
Zimmer later had the case removed to federal court in the U.S. District Court, Eastern District of Pennsylvania. That court recently ruled that all but one of Kee’s counts would be dismissed, according to Pennsylvania law.
Plaintiff claims Zimmer knee failure
Kee initially complained to her doctor of knee pain on August 26, 2009. According to her Zimmer NexGen CR lawsuit, she underwent bi-lateral total knee replacements on September 29, 2009, when her doctor implanted the Zimmer NexGen, Legacy Posterior Stabilized flex knee system (LPS system).
Less than two years later, Kee complained to her doctor again of knee pain in her left knee. Two doctors diagnosed her with apparent loosening of the tibial component, which indicated Zimmer knee failure. Kee had revision surgery on March 18, 2011.
Court dismisses liability and breach of implied warranty claims
After Zimmer removed Kee’s Zimmer NexGen CR lawsuit to federal court, they filed a motion to dismiss all counts except one, leaving negligence as the sole cause of action. The Court issued its decision on May 17, 2012.
According to the Court, Pennsylvania law bars strict-liability and implied-warranty claims against prescription medical device manufacturers—or more specifically, against “unavoidably unsafe products.” The Pennsylvania Supreme Court held that “where the adequacy of warnings associated with prescription drugs is at issue, the failure of the manufacturer to exercise reasonable care to warn of dangers, i.e., the manufacturer’s negligence, is the only recognized basis of liability.”
The plaintiff recognized Pennsylvania law, but argued that the Pennsylvania Supreme Court would not impose “blanket exemption” on medical device manufacturers, but would instead conduct a case-by-case, product-by-product analysis of whether or not the device was indeed unavoidably unsafe. The Court ruled, “this is not the law in Pennsylvania,” and therefore dismissed strict liability and implied breach of warranty claims.
Court dismisses unfair trade practices claim; no Zimmer knee recall
The Court also dismissed Kee’s breach of warranty claims, and held that the learned intermediary doctrine barred Kee’s unfair trade practices claim. Under Pennsylvania law, a consumer doesn’t have a cause of action against the manufacturer of prescription drugs because the companies do not have a duty to disclose information directly to consumers, but only to physicians.
Finally, the Court ruled that the plaintiff had failed to “allege conduct necessary to support an award of punitive damages.” The case will proceed on Count VIII (negligence) only.