United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge United States District Court
Fahy sued Biomet for damages in connection with the alleged
failure of his Biomet M2a Magnum hip implant. Biomet moved
for summary judgment, arguing Indiana's statutes of
limitations bars all of Mr. Fahy's claims based on (1) a
proposed date on which all plaintiffs were on constructive
notice of potential claims and (2) facts specific to Mr.
Fahy. I disagree with Biomet's proposed universal bar
date and DENY its motion as to Mr. Fahy's strict product
liability and negligence claims (Counts 1, 2 and 5), but
grant the motion as to the breach of warranty, negligent
misrepresentation, and deceptive trade practices/consumer
protection claims (Counts 3, 4, 6, 7 and 8), for the reasons
Standard of Review
judgment is appropriate when the pleadings, discovery
materials, disclosures, and affidavits demonstrate no genuine
issue of material fact, such that the movant is entitled to
judgment as a matter of law. Protective Life
Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir.
2011). I must construe the evidence and all inferences that
reasonably can be drawn from the evidence in the light most
favorable to Mr. Fahy, as the non-moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). As the
moving party, Biomet bears the burden of informing me of the
basis for its motion, together with evidence demonstrating
the absence of any genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If Biomet meets that burden, Mr. Fahy can't rest upon the
allegations in the pleadings, but must “point to
evidence that can be put in admissible form at trial, and
that, if believed by the fact-finder, could support judgment
in his favor.” Marr v. Bank of Am., N, A., 662
F.3d 963, 966 (7th Cir. 2011); see also Hastings Mut.
Ins. Co. v. LaFollette, No. 1:07-cv-1085, 2009 WL
348769, at *2 (S.D. Ind. Feb. 6, 2009) (“It is not the
duty of the court to scour the record in search of evidence
to defeat a motion for summary judgment; rather, the
nonmoving party bears the responsibility of identifying the
evidence upon which he relies.”); Hammel v. Eau
Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)
(summary judgment is “not a dress rehearsal or practice
run; it is the put up or shut up moment in a lawsuit, when a
party must show what evidence it has that would convince a
trier of fact to accept its version of events”).
Proposed Bar Date
Biomet asks me to establish a bar date applicable to all
plaintiffs. Biomet argues that enough information was
publicly available to put a reasonable plaintiff on notice by
February 10, 2011 that his injury might be connected to
Biomet's M2a Magnum metal-on-metal hip implant. As Biomet
sees it, if a plaintiff was injured on or before February 10,
2011, the statute of limitations would begin to run then. If
a plaintiff was injured after February 10, 2011, the statute
of limitations would begin to run on the date of injury.
discovery rule postpones the accrual of a cause of action
until the plaintiff knew, or through exercise of reasonable
diligence should have known, that he was injured. See,
e.g., Fla. Stat. § 95.031(2)(b); 735 Ill. Comp.
Stat. 5/13-213(d); N.C. Gen. Stat. § 1-52(16); Wash.
Rev. Code § 7.72.060(3); Martin v. Arthur, 3
S.W.3d 684, 690 (Ark. 1999); In re Med. Review Panel of
Howard, 573 So.2d 472, 474 (La. 1991); Moreno v.
Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).
contends that the following publicly available information
put a reasonable plaintiff on notice of a potential claim by
the proposed bar Dated: the device's Instructions for
Use, articles in medical journals, press reports, and the
Food and Drug Administration's websites. The Instructions
for Use for Biomet's metal-on-metal hip implants
disclosed that using the device could pose a risk of exposure
to metal debris, including osteolysis, metal
hypersensitivity, and elevated metal ion levels. Eight 2010
medical journal articles raised concerns about the risks
associated with metal-on-metal hip implants, including an
editorial in the Journal of Arthroplasty, the official,
peer-reviewed journal of the Association of Hip and Knee
Surgeons. See Ross Crawford et al., Metal on
Metal: Is it Worth the Risk?, J. Arthroplasty, Sept.
2010, at 1.
argues that news reports from early 2010 reporting on the
risks of metal debris with metal-on-metal hip implants also
put plaintiffs on notice of potential claims. See,
e.g., Barry Meier, As Use of Devices Grows, Studies
Raise Concerns, N.Y. Times, Mar. 4, 2010. More news reports
followed DePuy's August 2010 recall of two ASR
metal-on-metal hip implants. See, e.g., Natasha
Singer, Hip Implants Are Recalled by J. & J.
Unit, N.Y. Times, Aug. 27, 2010.
Biomet contends that the FDA notified the public when it
launched two websites discussing potential health risks of
metal-on-metal hip implants by February 10, 2011. See
Concerns about Metal-on-Metal Hip Implant Systems, Food
& Drug Admin. (last updated Feb. 10, 2011),
HipImplants/ucm241604.htm; Information for Patients Who
Have Metal-on-Metal Hip Implants, Food & Drug Admin.
(last updated Feb. 10, 2011),
HipImplants/ucm241766.htm. These websites warned that
metal-on-metal hip implants might leave debris that could
damage bones and tissue surrounding the implant, and
encouraged people to contact their physicians if they
experienced any symptoms. Biomet argues that the combined
effect of the Instructions for Use, journal articles, press
reports, and FDA warnings put a reasonable person on notice
of the connection between Biomet's device and an injury
from exposure to metal and metal debris no later than
February 10, 2011.
district court decisions in MDL dockets inform Biomet's
analysis. In In re Avandia Marketing, Sales Practices and
Products Liability Litigation, Judge Rufe held that a
bar date was appropriate because the cumulative effect of
publicity about a prescription drug's relationship to
adverse cardiovascular events was sufficient, as a matter of
law, to put an individual who had been injured on notice that
Avandia could be to blame. No. 07-MD-01871, 2012 WL 3205620,
at *4 (E.D. Pa. Aug. 7, 2012). This publicity included:
1. a New England Journal of Medicine study finding that
Avandia increased the risk of heart problems by forty-three
2. a joint statement from the American College of Cardiology,
the American Diabetes Association, and the American Heart
Association expressing concern and advising patients to speak
to their physicians;
3. an FDA advisory committee conclusion that Avandia
increased heart risk;
4. FDA action requiring that a warning be added to
5. the drug manufacturer sending letters to healthcare
professionals on studies linking Avandia and heart health;
6. the drug manufacturer publishing a “Dear
Patient” letter about the risks of heart problems;
7. a wave of media attention following the above, including
lead stories on the ...