United States District Court, S.D. New York
OPINION AND ORDER ADOPTING REPORT AND
Abrams United States District Judge
Mary Tomaselli and Eugene Tomaselli bring this products
liability action against Defendants Pioneer Surgical
Technology, Inc., Zimmer, Inc., and Zimmer Holdings, Inc.,
alleging injuries arising from the use of a Greater
Trochanter Reattachment ("GTR") device to repair a
fracture in Ms. Tomaselli's right greater trochanter.
Before the Court is the January 20, 2017 Report and
Recommendation of the Hon. Sarah Netburn, United States
Magistrate Judge, recommending that the Court grant
Defendants' motion for summary judgment and deny
Plaintiffs' cross-motion for summary judgment. For the
reasons set forth below, the Court adopts this
2010, Ms. Tomaselli fractured her right greater trochanter, a
part of the femur bone near the hip. See Decl. of
Judi Abbott Curry in Supp. of Mot. for Summ. J. ("Curry
Decl.") Ex. F (Dkt. 106-6). Over the next several
months, Ms. Tomaselli experienced continuous pain, struggled
to walk long distances, and demonstrated weakness and balance
deficits while standing. See Curry Decl. Ex. C
("Tomaselli Dep. Tr.") at 45:4-12, 45:21-16:2 (Dkt.
106-3); Curry Decl. Ex. H (Dkt. 106-8); Curry Decl. Ex. J
(Dkt. 106-10). On January 19, 2011, Ms. Tomaselli met with
Dr. Ohannes Nercessian, an orthopedic surgeon at New York
Presbyterian Hospital, who determined that her fracture had
not fully healed and advised her that surgery would be
necessary if she hoped to walk without a cane. See
Curry Decl. Ex. J. Dr. Nercessian explained to Ms. Tomaselli
that this surgery would involve the implantation of a
"greater trochanteric claw plate with cables, " and
that possible complications include "slight pain over
where the plate is." Id.; see also
Tomaselli Dep. Tr. at 50:14-19. Dr. Nercessian did not advise
Ms. Tomaselli of any risk that the cables in this device
could break. See Curry Decl. Ex. D ("Nercessian
Dep. Tr.") at 37:6-8, 37:19-22 (Dkt. 106-4).
February 1, 2011, Dr. Nercessian surgically implanted a GTR
device, manufactured by Pioneer Surgical and distributed by
Zimmer, in Ms. Tomaselli's right greater trochanter.
See Curry Decl. Ex. K (Dkt. 106-11), Ex. S at 19
(Dkt. 106-19). The GTR device includes a "claw and
cable": the "claw" is a metal plate placed
upon the greater trochanter, while the cable is a set of two
metal wires that affix the plate to the bone. See
Nercessian Dep. Tr. at 45:11-20, 47:9-13; Curry Decl. Ex. R
(Dkt. 106-18). The label of the GTR device provided
instructions for use ("IFU"), which identified
"possible adverse effects, " including
"[f]raying, kinking, loosening, or breakage of the
cables securing the device." Curry Decl. Ex. W (Dkt.
106-23). Dr. Nercessian did not read the IFU prior to
operating on Ms. Tomaselli. See Nercessian Dep. Tr.
April 27, 2012, after Ms. Tomaselli reported experiencing
pain in her pelvic region and thigh, an x-ray revealed that
one of the cables in the GTR device had broken. See
Curry Decl. Ex. O (Dkt. 106-15). The cable had "unwound
itself and lay longitudinally along Ms. Tomaselli's
femur. Id. Dr. Nercessian testified that he had
never seen cable breakage in a GTR device prior to his work
with Ms. Tomaselli. See, e.g., Nercessian Dep. Tr.
at 85:22-23. Based on his experience, however, Dr. Nercessian
testified that cable breakage is "a known risk of any
wire, any cable, " id. at 102:11, and that
cables tend to break "[b]y reaching and exceeding the
maximum fatigue strength of the metal, " id. at
91:15-16. Asked whether a cable implanted to repair a greater
trochanter fracture may break if the fracture fails to fully
heal-a so-called "nonunion"-Dr. Nercessian replied,
"Definitely." Id. at 91:17-19. Dr.
Nercessian did not recommend removing the GTR device, which
remains implanted in Ms. Tomaselli. See Curry Decl.
Ex. B. ¶ 4 (Dkt. 106-2); Nercessian Dep. Tr. at
April 25, 2014, Plaintiffs filed a complaint against
Defendants in New York state court, asserting claims of
negligence, strict products liability, breach of the implied
warranty of merchantability, breach of the implied warranty
of fitness for purposes intended, and breach of express
warranties. See Curry Decl. Ex. A (Dkt.
106-1). On June 20, 2014, Defendants removed the
action to this Court. Dkt. 2. On March 23, 2015, the Court
denied Plaintiffs' motion to remand and dismissed
Plaintiffs' claims against Columbia University Medical
Center, the New York and Presbyterian Hospital, and the
Trustees of Columbia University in the City of New York. Dkt.
41. On June 13, 2016, the remaining Defendants moved for
summary judgment. Dkt. 103. On July 22, 2016, Plaintiffs
filed an opposition to Defendants' motion and a
cross-motion for summary judgment. Dkts. 113, 118. On January
20, 2017, Judge Netburn issued the Report, which recommended
that the Court grant Defendants' motion for summary
judgment and deny Plaintiffs' cross-motion for summary
judgment. Dkt. 131. On February 2, 2017, Plaintiffs filed
objections to the Report and Recommendation, see
Pis.' Objs. (Dkt. 132), to which Defendants responded on
February 16, 2017, see Defs.' Resp. to Pis.'
Objs. (Dkt. 133).
Standard of Review
district court "may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1). Under
Federal Rule of Civil Procedure 72(b), a party may make
"specific written objections to the proposed findings
and recommendations" within fourteen days of being
served with a copy of a magistrate judge's recommended
disposition. Fed.R.Civ.P. 72(b)(2). A district court must
review de novo "those portions of the report or
specified proposed findings or recommendations to which
objection is made." 28 U.S.C. § 636(b)(1).
"However, when the objections simply reiterate previous
arguments or make only conclusory statements, the Court
should review the report for clear error." Brown v.
Colvin, 73 F.Supp.3d 193, 197 (S.D.N.Y. 2014). "To
accept those portions of the report to which no timely
objection has been made, 'a district court need only
satisfy itself that there is no clear error on the face of
the record.'" Hunter v. Lee, No. 13-CV-5880
(PAE), 2016 WL 5942311, at *1 (S.D.N.Y. Oct. 11, 2016)
(quoting King v. Greiner, No. 02-CV-5810 (DLC), 2009
WL 2001439, at *4 (S.D.N.Y. July 8, 2009)).
prevail on a motion for summary judgment, the movant must
show "that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). "An issue of
fact is genuine and material if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Cross Commerce Media, Inc. v. Collective,
Inc., 841 F.3d 155, 162 (2d Cir. 2016). "The movant
bears the burden of demonstrating the absence of a question
of material fact." Chaparro v. Kowalchyn, No.
15-CV-1996 (PAE), 2017 WL 666113, at *3 (S.D.N.Y. Feb. 17,
2017). "When a motion for summary judgment is properly
supported by documents or other evidentiary materials, the
party opposing summary judgment may not merely rest on the
allegations or denials of his pleading; rather his response,
by affidavits or otherwise as provided in the Rule, must set
forth 'specific facts' demonstrating that there is
'a genuine issue for trial.'" Wright v.
Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting
Fed.R.Civ.P. 56(e)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In determining
whether to grant summary judgment, the Court must
"constru[e] the evidence in the light most favorable to
the non-moving party and draw all reasonable inferences in
its favor." Mitchell v. City of N.Y., 841 F.3d
72, 77 (2d Cir. 2016) (quoting Costello v. City of
Burlington, 632 F.3d 41, 45 (2d Cir. 2011)).
object only to the Report's recommendation to grant
summary judgment to Defendants on their failure-to-warn
claim. See Pis.' Objs. at 2-6; Report at 7-11.
Defendants argue that the Court should review this objection
for clear error. See Defs.' Resp. to Pis.'
Objs. at 1-2. The Court need not decide whether clear error
or de novo review is appropriate, however, because it finds
no error, clear or otherwise, in ...