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Tomaselli v. Zimmer, Inc.

United States District Court, S.D. New York

March 15, 2017



          Ronnie Abrams United States District Judge

         Plaintiffs 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 recommendation.

         BACKGROUND [1]

         In 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).

         On 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. at 71:13-18.

         On 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 98:16-25.

         On 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).[2] 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).


         A. Standard of Review

         A 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)).

         B. Summary Judgment

         To 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)).


         Plaintiffs 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 ...

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