United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
Bissoon United States District Judge.
reasons stated below, Defendants' Motion to Dismiss (Doc.
42) will be granted.
August 31, 2012, Plaintiff underwent total left hip
arthroplasty, during which a hip joint replacement system,
consisting of a shell, insert, hip stem, femoral head and cap
base manufactured by Stryker, was implanted. (Doc. 41 ¶
33). Following the surgery, Plaintiff developed a wound
infection. (Id. ¶ 16). In November 2012, he
underwent surgery to remove the original hip implant and
replace it with an antibiotic cement spacer. (Id.).
A greater trochanteric osteotomy also was performed, with
three cerclage cables inserted around the osteotomy.
(Id. ¶ 20). On June 23, 2013, Plaintiff was
diagnosed with a periprosthetic fracture around the cerclage
cables. (Id. ¶ 23). On June 24, 2013, Plaintiff
underwent a revision surgery, during which the cerclage wires
and antibiotic spacer were removed and a total hip
replacement with cable plate was performed. (Id.
¶¶ 24-27). Plaintiff claims that “Defendants
designed the hip implants . . . with an inherent and
unreasonable propensity . . . to fail to bond with the growth
of the securing host bone, including loosening of the
attachment between the bone and implants, misalignment of the
implant components and improper fit of the implant
components, causing the hip implants to loosen and move in
all affected patients[.]” (Id. ¶ 35). He
also claims that “Defendants' negligent
manufacturing and packaging of the hip implants were the
direct and proximate cause of [his] development of an
infection[.]” (Id. ¶ 51).
originally brought suit in the Court of Common Pleas of
Beaver County for strict liability and negligence, based on
three separate theories: negligent design, negligent
manufacturing and failure to warn. The action was removed to
this Court on January 21, 2016. Plaintiff filed what was
styled his Second Amended Complaint (but which was, for
reasons previously explained (Doc. 35 at 2), in actuality his
First Amended Complaint) on June 2, 2016.
November 21, 2016, upon motion by Defendants, the Court
dismissed Plaintiff's claims for strict liability, with
prejudice, and his claims for negligent design and
manufacturing, without prejudice, while at the same time
finding that he did state a viable failure-to-warn claim.
(Doc. 35 at 7). Although the Court granted Plaintiff leave to
amend with respect to the negligent design and manufacturing
theories, it made clear that, if he chose to file another
amended complaint, he had to “be prepared to make last,
best efforts to state viable claim(s), as the Court [would]
not afford further opportunity for amendment.”
(Id. at 7 n.2).
December 29, 2016, Plaintiff filed his Fourth Amended
Complaint,  reasserting his claims for negligent
design (Count I), negligent failure to warn (Count II) and
negligent manufacturing (Count III). (Doc. 41). Except where
noted in the discussion that follows, the allegations in the
Fourth Amended Complaint are the same as the allegations in
the Second Amended Complaint.
January 12, 2017, Defendants filed a Motion to Dismiss with
respect to Counts I and III. (Docs. 42-43). They also argue
that any claims arising out of the device implanted during
the second surgery should be dismissed because they have not
been pled in the prior versions of the Complaint. On January
30, 2017, Plaintiff filed a response and brief in opposition
(Docs. 44-45). On February 6, 2017, Defendants filed a reply
(Doc. 46). The Motion is ripe for disposition.
Court dismissed the negligent design claim in Plaintiff's
last amended complaint
23), after determining that he failed to “identify the
particular component of the hip implant alleged to have been
defectively designed, let alone explain the nature of the
alleged defect, ” and thus had not overcome the
Twombly/Iqbal pleading standard. (Doc. 7 at
5). In the Fourth Amended Complaint, Plaintiff has attempted
to address the deficiencies the Court observed by making a
few minor modifications to his prior allegations and adding
the following multi-part paragraph:
38. Defendants deviated from their duty to exercise
reasonable care and were negligent, careless, and/or reckless
in one or ...