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Mary Horsmon and Fred Horsmon v. Zimmer Holdings

November 10, 2011


The opinion of the court was delivered by: Judge Cathy Bissoon



Pending before the Court is Defendants Zimmer Holdings, Inc., Zimmer Inc., and Zimmer US, Inc.‟s Partial Motion to Dismiss Plaintiffs‟ Complaint (Doc. 12). For the reasons stated herein, the Court will grant Defendants‟ motion to dismiss.


A.Factual Background

In May 2006, Plaintiff Mary Horsmon had a total hip replacement whereby her right hip joint was replaced with implant components designed, manufactured, and sold by Defendants. Compl. ¶¶ 11-12 (Doc. 1-2). Ms. Horsmon later began to experience pain in her right hip. Id. at ¶ 13. Sometime in 2009, an X-ray revealed that the screw holding Ms. Horsmon‟s hip prosthesis in place was broken, and that the hip implant system had shifted from its original position. Id. In September 2009, Ms. Horsmon underwent a revision of her total hip replacement, in which her doctor removed the broken screw and replaced several components of the hip implant. Id. at ¶ 15. Post-operative X-rays indicated that a portion of the broken screw remained in Ms. Horsmon‟s pelvis, and a subsequent pathology report revealed a 3.0 cm defect in the original liner that was used during the May 2006 hip replacement. Id. at ¶ 16.

Plaintiffs allege that Defendants‟ conduct caused Ms. Horsmon to suffer various injuries, including being forced to undergo a second major surgical procedure, permanent injury to her hip, and severe pain and discomfort. Id. at ¶ 17.

B.Procedural Background

Plaintiffs brought this action in the Court of Common Pleas of Allegheny County, asserting five causes of action: negligence (Count I); strict liability (Count II); breach of implied warranties (Count III); breach of express warranties (Count IV); and loss of consortium (Count V).*fn1 Defendants removed this action to this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332, and filed the currently pending motion to dismiss Counts II, III and IV of Plaintiffs‟ complaint. Defendants assert that Counts II and III should be dismissed as barred by Pennsylvania law, and that Count IV should be dismissed for failing to allege sufficient facts to state a plausible claim.


A.Strict Liability (Count II)

Defendants assert that Plaintiff‟s claim for strict liability (Count II) is barred by Pennsylvania law.*fn2 Defs.‟ Br. 4-5 (Doc. 13). The Supreme Court of Pennsylvania in Hahn v. Richter, 673 A.2d 888 (Pa. 1996), held that strict liability claims cannot be brought against prescription drug manufacturers. The court relied on Comment k to the Restatement (Second) of Torts § 402A. Comment k, titled "Unavoidably unsafe products" states:

There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. . . . . Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. . . . . The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

Comment k does not mention medical devices and the Supreme Court of Pennsylvania has not addressed whether Hahn applies to medical device manufacturers, but the Superior Court of Pennsylvania and several United States District Courts applying Pennsylvania law have extended Hahn to bar strict liability claims against medical device manufacturers. E.g., Creazzo v. Medtronic, Inc., 903 A.2d 24, 31 (Pa. Super. Ct. 2006) ("We find no reason why the same rational [sic] applicable to prescription drugs [in Hahn] may not be applied to medical devices."); Parkinson v. Guidant Corp., 315 F. Supp. 2d 741, 747 (W.D. Pa. 2004) (Diamond, J.); Kester v. Zimmer Holdings, Inc., 2:10-cv-523, 2010 WL 2696467, at *9 ...

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