The opinion of the court was delivered by: Mauskopf, United States District Judge.
Plaintiffs Debra and Craig Morritt*fn1 ("plaintiffs") filed this action against Stryker Corporation, Stryker Orthopaedics, Inc., and Stryker Howmedica Osteonics, a division of Stryker Corporation, ("defendants") for injuries allegedly caused by a defective knee replacement system manufactured by defendants. Defendants removed the action to this Court on the basis of diversity jurisdiction. (Notice of Removal (Doc. No. 1).) Plaintiffs' claims for relief are based on negligence, strict products liability, breach of implied warranty, breach of express warranty, and loss of consortium. (Id.) Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. No. 33.) For the reasons set forth below, defendants' motion is GRANTED in part and DENIED in part.
A. Debra Morritt's Knee Replacement
On June 16, 2005, Dr. Gregory Montalbano performed a total knee replacement of Debra Morritt's right knee, using Stryker Scorpio and Series 7000 products. (Decl. of Debra Morritt, executed Sept. 8, 2010 ("D. Morritt Decl.") (Doc. No. 38) ¶ 5; Defs.' Mem. in Supp. of Mot. for Summ. J. (Doc. No. 34) at 5.) At the time, Debra Morritt was fifty-three years old. (D. Morritt Decl. ¶ 6.) The Stryker Scorpio system is comprised of multiple interlocking pieces (modularity), allowing a surgeon to mix and match pieces depending on the patient's anatomy. (Defs.' 56.1 Stmt. (Doc. No. 35) ¶ 5, Pls.' 56.1 Cntrstmt. (Doc. No. 47) ¶ 5.) Modularity is the dominant orthopedic trend. (Defs.' 56.1 Stmt. ¶ 6, Pls.' 56.1 Cntrstmt. ¶ 6.) In performing Debra Morritt's knee replacement surgery, Dr. Montalbano used various component parts, including an Osteonics Scorpio Tibial Bearing Insert -- Posteriorly Stabilized 8mm #5, #72-3-0508, Case Code 91999301, ID #127438P (the "Polyethylene Tibial Insert"). (Decl. of Randolph Janis, executed Sept. 22, 2010 ("Janis Decl.") (Doc. Nos. 42--46) Ex. 13 (Rep. of Prof. Robert Rose, executed Jan. 29, 2010 ("Rose Rep.")), at 2; Decl. of Amy T. Sheehan, executed July 23, 2010 ("Sheehan Decl.") (Doc. No. 36) Ex. A (Rep. of Prof. Steven M. Kurtz, executed Mar. 1, 2010 ("Kurtz Rep.")), at 2.)
Debra Morritt responded well to the knee replacement until August 2005, when she complained to Dr. Montalbano of discomfort and swelling in her right knee. (D. Morritt. Decl. ¶ 9.) On March 15, 2006, Dr. Montalbano examined the knee replacement during arthroscopic surgery, finding polyethylene wear on the Polyethylene Tibial Insert. (Decl. of Dr. Gregory Montalbano, executed Sept. 18, 2010 ("Montalbano Decl.") (Doc. No. 40) ¶¶ 19--21.) He observed "discoloration, cracking, pitting, and erosions" that were "diffuse and not localized." (Id. ¶ 21 (emphasis in original).) Dr. Montalbano's post-operative diagnosis was "polyethylene wear, synovitis, and adhesions." (Id. ¶ 20.) Dr. Montalbano explained to Debra Morritt that "her persistent symptoms were secondary to this observed premature polyethylene wear" and that "the subject polyethylene tibial insert had clearly not performed in the manner that it was intended to in that this tibial insert lasted less than one year while it should have lasted a minimum of 10 years." (Id. ¶ 25 (emphasis in original).) A Senior Design Engineer for Stryker also testified that, when the Stryker Scorpio knee replacement system was in the designing stage, its expected lifetime was a "[m]inimum of 10 years." (Janis Decl. Ex. 18 (Dec. 22, 2009 Dep. of Marc Weissman ("Weissman Dep.")) at 23.)
Generally, polyethylene tibial inserts may be damaged by fragments of bone or bone cement. (Defs.' 56.1 Stmt. ¶ 12, Pls.' 56.1 Cntrstmt. ¶ 12.) Malrotation can also cause pitting of the topside of polyethylene tibial inserts. (Defs.' 56.1 Stmt. ¶ 13, Pls.' 56.1 Cntrstmt. ¶ 13.) Dr. Montalbano stated that he personally reviewed a CAT scan of Debra Morritt's right knee in March 2006 and determined that the Polyethylene Tibial Insert was properly aligned. (Montalbano Decl. ¶ 24.)
Dr. Montalbano recommended surgery to remove and replace the allegedly defective Polyethylene Tibial Insert. (D. Morritt Decl. ¶ 17.) On May 3, 2006, Dr. Montalbano replaced only the Polyethylene Tibial Insert. (Montalbano Decl. ¶ 9.) Dr. Montalbano stated that, during the surgery, he observed that the Polyethylene Tibial Insert was properly aligned. (Id. ¶ 31.) Dr. Montalbano chose once again to use the Stryker Scorpio when he removed and replaced the Polyethylene Tibial Insert. (Defs.' 56.1 Stmt. ¶ 7, Pls.' 56.1 Cntrstmt. ¶ 7.) Dr. Montalbano stated that, after the surgery, he examined the allegedly defective Polyethylene Tibial Insert, which showed symmetrical macroscopic wear on both sides, delamination, and discoloration of the surface. (Montalbano Decl. ¶¶ 29--30.)
After the May 3, 2006 surgery, Debra Morritt developed an infection in her right knee. (D. Morritt Decl. ¶ 19.) One week prior, Debra Morritt had received 700 mg of Remicade, an immunosuppressant, for her arthritis, as prescribed by Dr. Mark Goldstein. (Defs.' 56.1 Stmt. ¶ 8, Pls.' 56.1 Cntrstmt. ¶ 8; Sheehan Decl. Ex. B (Rep. of Dr. Neil Kramer, executed Feb. 17, 2010 ("Kramer Rep.")), at 2.) Debra Morritt proceeded to have various additional surgeries and procedures on her right knee, including:
Irrigation and debridement surgery performed at St. Vincent's Catholic Medical Center on May 19, 2006; Removal of the entire knee replacement system, debridement, and placement of a cement spacer performed at NYU hospital for Joint Diseases on June 16, 2006 -- discharged from hospital on June 20, 2006; Removal of cement spacer, debridement, and implantation of new total knee replacement system performed at NYU Hospital for Joint Diseases on July 27, 2006 -- discharged from hospital on July 31, 2006; Second irrigation and debridement surgery with poly liner exchange performed at NYU Hospital for Joint Diseases on August 24, 2006 -- admitted to hospital on August 23, 2006 and discharged from hospital on August 31, 2006; Revision of total knee replacement system (removal of the system and placement of cement spacer) and third irrigation and debridement surgery performed at NYU Hospital for Joint Diseases on September 28, 2006 -- admitted to hospital on September 25, 2006 and discharged on October 2, 2006; and [r]emoval of cement spacer and implementation of new total knee replacement system minus the knee cap performed at NYU Hospital for Joint Diseases on January 12, 2007 -- discharged on January 20, 2007.
(D. Morritt Decl. ¶ 19.) Debra Morritt stated that these surgeries caused her right knee to become weak and her gait to become unsteady. (D. Morritt Decl. ¶ 20.)
On April 21, 2007, Debra Morritt fell in her kitchen and sustained a fracture of the hip for which she required surgery. (Id.) She underwent a total hip replacement in April 2007 and subsequently a revision of the hip prosthesis. (Defs.' 56.1 Stmt. ¶ 9, Pls.' 56.1 Cntrstmt. ¶ 9.)
Following her hip replacement, Debra Morritt developed an infection in her hip. (Defs.' 56.1 Stmt. ¶ 10, Pls.' 56.1 Cntrstmt. ¶ 10.)
According to a 2009 report conducted in Australia by the Australian Orthopaedic Association National Joint Replacement Registry, the cemented Stryker Scorpio total knee replacement system had a revision rate of 0.9% at 1 year follow-up. (Defs.' 56.1 Stmt. ¶ 1, Pls.' 56.1 Cntrstmt. ¶ 1.) The 2003 National Institute of Health Consensus Development Conference established an expected 1% annual revision rate for the category of implants that includes the Stryker Scorpio total knee replacement system. (Defs.' 56.1 Stmt. ¶ 2, Pls.' 56.1 Cntrstmt. ¶ 2.) Competing knee replacement devices surveyed in the Australian study showed revision rates as high as 2.7% after one year. (Defs.' 56.1 Stmt. ¶ 3, Pls.' 56.1 Cntrstmt. ¶ 3.) About 1% of all total knee replacements fail each year for a variety of reasons, including wear of the ultra high molecular weight polyethylene. (Defs.' 56.1 Stmt. ¶ 4, Pls.' 56.1 Cntrstmt. ¶ 4.)
Plaintiffs originally filed this action in state court. On June 8, 2007, defendants removed the case to this Court on the basis of diversity jurisdiction. (Doc. No. 1.) By Order of Magistrate Judge Ramon E. Reyes, Jr., fact discovery closed on December 30, 2009, and plaintiffs were ordered to provide expert disclosures by January 29, 2010. (Doc. No. 23.) Defendants' rebuttal expert disclosures were due by March 1, 2010, and expert discovery was to be completed by March 26, 2010. (Id.) Magistrate Judge Reyes' Order required that "[t]he parties further agree and acknowledge that the Court will permit no further modification to the Scheduling Order in this action." (Id.)
During discovery, plaintiffs provided an expert report from only one expert, Professor Robert Rose, a retired engineering professor from the Massachusetts Institute of Technology.
On October 7, 2010, defendants moved for summary judgment. (Doc. No. 33.) In opposition to defendants' summary judgment motion, plaintiffs have submitted declarations from Professor Rose and Dr. Montalbano, Debra Morritt's treating physician. (Montalbano Decl.; Decl. of Prof. Robert Rose, executed Sept. 20, 2010 ("Rose Decl.") (Doc. No. 41).) Defendants move to strike these declarations pursuant to Federal Rule of Civil Procedure 37, arguing that they contain expert testimony that plaintiffs did not timely disclose as required by Rule 26 and Magistrate Judge Reyes' Scheduling Order. (Defs.' Rep. in Further Supp. of Summ. J. Mot. (Doc. No. 48) at 2.) Defendants also seek to preclude the expert testimony of Professor Rose pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). (Defs.' Mem. in Supp. of Mot. for Summ. J. at 20.) On ...