United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge
Macal sued Biomet for damages in connection with the alleged
failure of his Biomet M2a-Magnum hip implant. Biomet seeks
summary judgment, arguing that his claims are barred by the
applicable statute of limitations. For the following reasons,
Biomet's summary judgment motion is granted as to Mr.
Macal's deceptive practices claim, and denied in all
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, 391-392 (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.
Macal, 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. Macal 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”).
Macal received two Biomet Magnum hip implants in Georgia -
one on December 24, 2008 (the right hip) and the other on
April 29, 2009 (the left hip). In 2009, he saw attorney
advertising about Biomet metal-on-metal hip implants, and
contemplated contacting an attorney to see if he could file a
lawsuit against Biomet.
Macal moved to Florida in 2011 or 2012, and about two years
later, in July 2014, doctors told him that he needed revision
surgeries, after results from labs taken on July 17, 2014
showed that he had significantly elevated levels of serum
cobalt and chromium. He underwent revision surgery on his
right hip on August 4, 2014; the left hip was revised a week
later, on August 11, 2014. Both surgeries were performed in
August 8, 2014, Mr. Macal filed a complaint against Biomet in
the Middle District of Florida, alleging strict product
liability, negligence, breach of express and implied
warranties, fraudulent misrepresentation, fraudulent
concealment, and violation of the Florida Deceptive and
Unfair Trade Practices Act. The Judicial Panel on
Multi-District Litigation transferred his case to this docket
and this court, pursuant to a conditional transfer order.
federal jurisdiction is based on diversity of citizenship,
the choice-of-law rules to be used are those choice-of-law
rules of the states where the actions were originally
filed.” In re Air Crash Disaster Near Chicago,
644 F.2d 594, 610 (7th Cir. 1981). The case was filed in
choice of law conflicts arise, Florida courts apply the
“most significant relationship” test set forth in
the Restatement (Second) of Conflicts of Law. Bishop v.
Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.
1980). “[A]bsent special circumstances, ‘[t]he
state where the injury occurred would...be the decisive
consideration in determining the applicable choice of
law.'” Pycsa Panama, S.A. v. Tensar Earth
Technologies, Inc., 625 F.Supp.2d 1198, 1220 (S.D. Fla.
2008) (citing Bishop, 389 So.2d at 1001). Biomet
asserts that the injury started in Georgia, so Georgia law,
including its statute of limitations should apply, but the
injury in question isn't the “discomfort” Mr.
Macal felt following the initial implants in Georgia.
It's the injury that manifested itself while he was
living in Florida (metallosis), was diagnosed in Florida, and
that required revision surgeries in Florida. Accordingly, I
will apply the Florida statutes of limitation.
Macal had to file his claims for product liability,
negligence, breach of warranty, and fraud within four years
from the time “the facts giving rise to the cause of
action were discovered, or should have been discovered with
the exercise of due diligence.” Fla. Stat. Ann.
§§ 95.031(2)(1) and (b) and 95.11.
contends that Mr. Macal complained of discomfort shortly
after the devices were implanted, and became aware of a
possible causal connection between his “injuries”
and the Biomet hip implants by the end of 2009, when he saw
attorney advertising on the subject and first thought about
suing. From this, Biomet concludes that his product liability
and related claims accrued no later than the end of 2009,
more than four years before Mr. Macal had revision surgery
and filed his complaint, and so are barred by Florida's
four-year statute of limitations and (if applicable)
Georgia's two year statute, Ga. Stat. Ann. § 9-3-33.
Mr. Macal experienced “discomfort” in 2009,
discomfort isn't the injury he alleges; it's simply a
symptom. Mr. Macal contends that he wasn't aware of the
true nature of his injury and the potential cause until his
doctors made him aware of his need to have the revisions in
July 2014, and his complaint was filed a month later, well
within the limitations period.
on this record, a genuine issue of fact exists as to when Mr.
Macal knew or should have known that the allegedly defective
implants could have caused the injuries that made the
revisions necessary. His knowledge that something was wrong,
with the complexities of medical treatment, might have been
enough to put him on inquiry notice as to the failure of the
device itself. But that's a question of fact that
can't be resolved on a motion for summary judgment.
Biomet's motion is therefore denied as to the products
liability and related claims of negligence, breach of
warranty, and fraud, to the extent those claims are based on
personal injury. See Adair v. Baker Bros., 366
S.E.2d 164, 165 (Ga.App. 1988); Woodward v. Sickles,
521 S.E.2d 211, 212 (Ga.App. 1999); Fla. Stat. §
argues that Mr. Macal's Deceptive and Unfair Trade
Practice claim accrued at the time the implants were
delivered in 2008 and 2009, and so is barred by Florida's
four-year statute of limitations. See Fla. Stat. 95.11(3)(f);
South Motor Co. v. Koktorczyk, 957 So.2d 1215, 1217
(Fla. App. 2007). Mr. Macal didn't address that argument
in his response, and indicated that he doesn't intend to
pursue that claim. Accordingly, I will deem Biomet's
statement of the facts to be undisputed and grant its motion
for summary judgment on the Deceptive and Unfair Trade
foregoing reasons, the court GRANTS Biomet's motion for
summary judgment [Doc. No. 173] as to Mr. Macal's claim
under the Florida Deceptive and Unfair ...