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Adams v. Zimmer US, Inc.

United States Court of Appeals, Third Circuit

November 20, 2019


          ARGUED: April 17, 2019

          On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civ. Action No. 5-17-cv-00621 District Judge: Honorable Edward G. Smith

          Charles L. Becker [ARGUED] Ruxandra M. Laidacker Kline & Specter Joseph A. Osborne, Jr. Andrew Norden Ami Romanelli Osborne & Francis Counsel for Appellant

          Dana E. Becker Troy S. Brown Morgan Lewis & Bockius Bruce G. Jones [ARGUED] Faegre Baker Daniels Michael J. Kanute Faegre Baker Daniels Counsel for Appellees

          Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges.


          SCIRICA, Circuit Judge.

         Pennsylvania's discovery rule delays the start of the statute-of-limitations period until a plaintiff knows or reasonably should know she has suffered an injury caused by another. This appeal requires us to decide whether a reasonable juror could credit plaintiff Marilyn Adams's contention that she reasonably did not know until February 12, 2015 that the hip implant made by defendant Zimmer, Inc., caused her the injuries for which she now sues. When Adams brought a defective design claim against Zimmer in February 2017, Zimmer contended she should have discovered her injury by January 2015, when she agreed to undergo hip implant revision surgery. The District Court accepted Zimmer's argument and granted summary judgment on the ground that Adams's claim was untimely under the discovery rule and two-year statute of limitations. In doing so, however, the District Court resolved issues of fact regarding the timing of Adams's discovery that her hip pain was caused not by her poor adjustment to the implant but instead by the implant itself. Because Pennsylvania law delegates to a factfinder any genuine dispute over when a plaintiff in Adams's position should reasonably have discovered her injury, we will reverse and remand.


         Plaintiff-Appellant Marilyn Adams had a long and difficult history with hip pain.[1] Adams first sought medical help from orthopedic surgeon Dr. Prodromos Ververeli in September 2010; he diagnosed her with advanced degenerative arthritis and recommended a total hip replacement. Dr. Ververeli counseled Adams that the hip replacement would last fifteen to twenty years, though he warned her the implant may wear down with use before then. Adams agreed to a hip replacement and Dr. Ververeli performed the procedure on January 18, 2011, implanting a Zimmer hip device.[2]

         Adams had no further problems with her hip for roughly a year and a half, but in late 2012, she started experiencing severe pain. Dr. Ververeli described the cause of her problems as "unclear" and the diagnostic process as "difficult." App'x 958, 228. He ran various tests attempting to identify the pain's source, eventually diagnosing Adams with an infection. Although he warned Adams that a severe infection may require removing part of her hip replacement, he was able to successfully treat it in 2013 without removing the implant.

         Adams's hip problems returned in November 2014, when she dislocated her hip while spending several months in Florida. Doctors in the emergency room there put the implant back in place, and Adams saw Dr. Ververeli when she returned home in early January 2015. Dr. Ververeli ordered various diagnostic tests, and an x-ray showed calcification around the implant. Dr. Ververeli testified he thought this abnormal result "could have been possibl[y] related to ongoing tissue reaction or a reaction to the actual dislocation event." App'x 232. He ordered a CT scan, which showed a local adverse tissue reaction.

         Dr. Ververeli recommended hip revision surgery for Adams to replace the metal femoral head of her hip implant with a ceramic one. Though Adams was distraught to undergo hip surgery again, she consented to the operation. She went in for a pre-operative visit on January 30, 2015. Records from the visit indicate Adams was suffering from "right total hip metallosis," App'x 166, which Dr. Ververeli testified is defined, "typically," as "metal wear that then causes a reaction to the surrounding tissues"; he added the precise reaction varies depending on the individual patient. App'x 218. Adams testified she did not recall hearing about metallosis, but remembered being distraught over her upcoming surgery. She went into Dr. Ververeli's office on February 9 to sign an informed consent form, which generally repeated the information she had been told in her pre-operative visit.

         Adams underwent the revision surgery on February 12, 2015. Though Dr. Ververeli expected to replace only components of the implant around the hip socket, what he discovered during the surgery called for a different-and much more drastic-revision: upon opening Adams's hip, Dr. Ververeli found her muscle had largely deteriorated and metal debris had taken over much of the area. He discovered a pseudotumor roughly the size of a baseball. Rather than replacing the socket and implant lining, which were in fact largely "intact," App'x 235, he replaced all of the main components of the implant hip, which had been discharging excessive and potentially toxic metal debris into Adams's hip. Dr. Ververeli told Adams about his intraoperative findings after her surgery.

         Adams continued to experience hip pain after the surgery, and on February 10, 2017, she brought a product liability action against Zimmer.[3] She alleged the implant was defectively designed in a way that led to "excessive fretting" (i.e., scraping between the pieces of the implant), corrosion, and metal wear debris; she further alleged Zimmer had failed to warn her of those risks. Zimmer moved for summary judgment on the ground that Adams's claims were time-barred. The District Court agreed and entered summary judgment on statute-of-limitations grounds. Adams appeals.[4]



         In Pennsylvania, a prospective plaintiff has two years to bring a design defect claim like Adams's. See 42 Pa. Cons. Stat. § 5524(2). The two-year statute of limitations generally begins to run "when an injury is inflicted." Wilson v. El-Daief, 964 A.2d 354, 361 (Pa. 2009). But "where the plaintiffs injury or its cause was neither known nor reasonably ascertainable," the "discovery rule" tolls the statute of limitations. Nicolaou v. Martin, 195 A.3d 880, 892 (Pa. 2018); Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005). The discovery rule accordingly protects parties who are reasonably unaware of latent injuries or suffer from injuries of unknown etiology. Nicolaou, 195 A.3d at 892 & n.13; Fine, 870 A.2d at 858.

         Under the Pennsylvania discovery rule, the "commencement of the limitations period is grounded on 'inquiry notice' that is tied to 'actual or constructive knowledge of at least some form of significant harm and of a factual cause linked to another's conduct, without the necessity of notice to the full extent of the injury, the fact of actual negligence, or precise cause.'" Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa. 2011) (quoting Wilson, 964 A.2d at 364). The statute of limitations accordingly begins to run when the plaintiff knew or, exercising reasonable diligence, should have known (1) he or she was injured and (2) that the injury was caused by another. See Coleman v. Wyeth Pharms., 6 A.3d 502, 510-11 (Pa. Super. Ct. 2010). That "reasonable diligence" standard is an objective one, but at the same time "sufficiently flexible" to "take into account the differences between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question." Fine, 870 A.2d at 858 (internal citation omitted); see also Nicolaou, 195 A.3d at 893. Plaintiffs generally will not be charged with more medical knowledge than their doctors or health care providers have communicated to them. See Wilson, 964 A.2d at 365. A plaintiff bears the burden of showing her reasonable diligence. Nicolaou, 195 A.3d at 893.

         "The balance struck in Pennsylvania" between the rights of diligent plaintiffs and defendants who should not have to face stale claims "has been to impose a . . . limited notice requirement upon the plaintiff, but to submit factual questions regarding that notice to the jury as fact-finder." Gleason, 15 A.3d at 485. "[T]hat the factual issues pertaining to Plaintiffs' notice and diligence are for a jury to decide" is a "well-established general rule" in Pennsylvania. Nicolaou, 195 A.3d at 894; see also Carlino v. Ethicon, Inc., 208 A.3d 92, 104 (Pa. Super. Ct. 2019). "The interplay between summary judgment principles and application of the discovery rule requires us to consider whether it is undeniably clear that [Adams] did not use reasonable diligence in timely ascertaining [her] injury and its cause, or whether an issue of genuine fact exists regarding [her] use of reasonable diligence to ascertain [her] injury and its cause." Gleason, 15 A.3d at 486-87. If such an issue of diligence or notice exists, it is a jury's role to resolve it. "Where, however, reasonable minds would not differ in finding that a party knew or should have known on the exercise of reasonable diligence of his injury and its cause, ... the discovery rule does not apply as a matter of law." Fine, 870 A.2d 858-59.


         The central issue in this case is whether a jury could conclude Adams reasonably did not discover her injury until February 12, 2015, when Dr. Ververeli apprised her of his intraoperative finding that her implant had deteriorated and emitted metal shards into her hip. The District Court concluded there can be no dispute that the information available to Adams in her preoperative visits would have put a reasonably diligent person on notice of her injury as a matter of law. In reviewing that determination at summary judgment we must "view the record and draw inferences in a light most favorable to" Adams as "the non-moving party." Debiec v. Cabot Corp., 352 F.3d 117, 128 n.3 (3d Cir. 2003). Doing so, we cannot conclude that summary judgment was appropriate. As in the several Pennsylvania Supreme Court cases before this one, the question "[w]hether [a plaintiff] should have acted with greater diligence to investigate" or otherwise should have known of her injury earlier "can only be seen as an issue of fact." Gleason, 15 A.3d at 487.

         The Pennsylvania Supreme Court has paid particular heed to the jury's role in determining reasonable diligence in medical contexts. The cause of a patient's pain or discomfort can be difficult for her to identify, so courts rarely impute knowledge as a matter of law. The Court explained that principle in Fine v. Checcio, 870 A.2d 850 (Pa. 2005), its seminal treatment of the discovery rule in the context of etiological uncertainty. There, Fine had experienced facial numbness after having his wisdom teeth extracted. His doctor advised him the numbness was a normal side-effect of the surgery, but the numbness persisted for nearly a year. When Fine filed a malpractice claim about two years and one month after his wisdom tooth surgery, his doctor successfully obtained a summary judgment; the doctor defendant argued the limitations period began on the date of the extraction because Fine knew his injury-numbness-then. But the Pennsylvania Supreme Court disagreed. It held that a reasonable jury could understand Fine's numbness as "indicative of two distinct phenomena"-temporary side effect or permanent injury. Id. at 861. Because of that factual uncertainty, a jury might determine a reasonable person in his position neither knew nor should have known of his injury immediately after surgery.

         The Court has continued to emphasize the principle that diagnostic uncertainty usually creates a jury question. In Wilson v. El-Daief, 964 A.2d 354 (Pa. 2009), for instance, the Court held the plaintiffs immediate suspicion of surgical error after surgery did not start the statutory clock as a matter of law because her surgeon denied error and the second opinion she sought suggested surgical error as only one of several possible explanations for her pain. Id. at 365-66. See also Gleason, 15 A.3d at 486-87 (similar). Most recently, in Nicolaou v. Martin, 195 A.3d 880 (Pa. 2018), the Court affirmed that principle: Nicolaou was bitten by a tick in 2001 and immediately sought a Lyme disease test; though her symptoms persisted, that test, and three others administered over the next half dozen years, all came back negative. She eventually saw a fifth healthcare provider in 2009, who diagnosed her with probable Lyme disease and recommended an advanced test. Nicolaou initially declined to pay for the test for financial reasons, but ultimately took it in February 2010. That test confirmed she had Lyme disease. The Court held that Nicolaou-who brought suit about two years after the February 2010 test-should be able to present her case for reasonable diligence to a jury. Id. at 894-95.

         Like the plaintiffs in these Pennsylvania Supreme Court cases, Adams has maintained that she acted with reasonable diligence yet did not discover her injury until February 2015. Adams's claim here is that she did not know the nature of her injury or that it was the deterioration of the Zimmer implant, rather than her reaction to the implant, that was the cause. Just as a jury could find the plaintiff in Fine ascribed his pain to temporary post-operative numbness, so a jury could reasonably conclude Adams ascribed her pain to her own poor adjustment to the implant; it was only when her doctor discovered new information "intraoperatively" that she would know the implant's disintegration, rather than her reaction to the implant, was causing her pain. App'x 238.

         To be sure, Pennsylvania's discovery rule asks only when Adams knew she was injured and that her injury was caused by another. For the statute of limitations to start, she "need not know that [the] defendant's conduct is injurious." Wilson, 964 A.2d at 363. But that limitation on the requirements for notice was developed in order to hold plaintiffs to a standard of reasonable diligence: it operates to bar a claim where "the plaintiff has failed to exercise diligence in determining injury and cause by another, but has limited relevance in scenarios in which the plaintiff has exercised diligence but remains unaware of either of these factors." Id. Zimmer does not dispute that Adams investigated her claim in coordination with Dr. Ververeli, see Oral Arg. Recording at 26:03-26:48, and a factfinder could reasonably determine that Adams had exercised reasonable diligence. This strongly counsels against determining notice as a matter of law.

         Pennsylvania Supreme Court precedent further illustrates that while the discovery rule does not require the patient to have "a precise medical diagnosis" to start the statute of limitations, "a lay person is only charged with the knowledge communicated to him or her by the medical professionals who provided treatment and diagnosis." Nicolaou, 195 A.3d at 893; see also Wilson, 964 A.2d at 365. Adams has offered evidence that Dr. Ververeli himself did not know her injury and its cause until he was in the middle of operating on her hip in February 2015. Dr. Ververeli testified that his understanding of the injury and its cause fundamentally changed "intraoperatively," App'x 238: he began the operation planning to repair and replace the socket of the implant, which he expected had worn down with Adams's use, but the socket was in fine shape. He instead discovered the implant hip itself was corroding into Adams's hip and causing her harm. Before that revision surgery, Dr. Ververeli expected Adams was adjusting poorly because "the longevity of the plastic [was] wearing out" around the plastic-lined socket; as to the implant and surrounding hip, he expected "normal appearance." App'x 235. But once he began operating, Dr. Ververeli realized Adams's hip looked unlike the "many hip revisions [he had done] in [his] career." App'x 235. He testified: "[W]hen I opened up Marilyn's hip what became very abundant in this reaction, it almost looked like debris where her muscle should be as kind of replaced with this very friable, very fragile membrane that had a vascularity to it." App'x 235. Having seen the interior of Adams's hip, he formed the opinion that her "adverse local tissue reaction [was] secondary," i.e., not caused by her body's poor adjustment, but instead "a reaction to the [Zimmer implant]." App'x 238. He agreed that the corrosion and fretting that make up her injury were not, and could not, be "detect[ed] until the time of the revision when the implant [was] visible." App'x 241.

         A reasonable jury could accept Dr. Ververeli's conception of the injury and cause changed during the revision surgery. And if Dr. Ververeli did not realize a problem with the implant was injuring Adams until the revision surgery, under Pennsylvania law Adams too cannot be charged with that constructive knowledge. Reasonable jurors could accordingly find Adams, though she knew she had trouble ...

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