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White v. DePuy, Inc.

Court of Appeals of Ohio, Twelfth Appellate District, Butler County

August 17, 1998, Decided

CASE NO. CA98-01-008

Opinion

 [**452]   [*475]  OPINION

(Accelerated Calendar)

WALSH, J.  Plaintiffs-appellants, Gloria and Glen White ("the Whites"), appeal a decision of Butler County Court of Common Pleas denying their motion for summary  [*476]  judgment against defendant-appellee, DePuy, Inc. ("DePuy") and granting DePuy's motion for summary judgment against the Whites. The Whites also appeal a separate decision by the trial court granting summary judgment to defendant-appellee, Mercy [***2]  Hospital of Fairfield, Ohio ("Mercy Fairfield"). We affirm in part, reverse in part, and remand.

On February 2, 1989, defendant, O. Daniel Fox, M.D., an orthopedic surgeon, performed hip replacement surgery on Gloria White. The prosthetic hip that Dr. Fox implanted into White was manufactured by DePuy. The hip is a ball and socket design. The socket component, or acetabulum, is made of metal lined with a polyethylene cup. In 1990, the type of polyethylene cup used in Gloria White's artificial hip was part of a voluntary recall issued by DePuy. DePuy's decision to recall those liners was "prompted by [DePuy's] *** receipt of notices, primarily from surgeons, of twelve reported failures [of the polyethylene lining]." Because White's own liner was already implanted, it was not subject to the recall.

In June 1993, about three years after DePuy initiated the recall, Dr. Fox ordered x-rays of White's prosthetic hip. The x-rays showed that White's polyethylene cup liner had completely deteriorated, causing wear of the surrounding acetabulum. In June 1994, White had a second operation on her hip to replace the deteriorated components.

In April 1996, Gloria White and her husband,  [***3]  Glen White, filed this action against DePuy alleging that the polyethylene cup liner was a defective product. The complaint stated claims of: (1) strict products liability for breach of express and implied warranties; and, (2) negligent manufacture  [**453]  and sale of a defective product. Glen White sued for loss of consortium.

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129 Ohio App. 3d 472 *; 718 N.E.2d 450 **; 1998 Ohio App. LEXIS 3745 ***

GLORIA WHITE, et al., Plaintiffs-Appellants, - vs - DEPUY, INC., et al., Defendants-Appellees.

Subsequent History:  [***1]  As Amended December 30, 1999.

Disposition: Affirmed in part, reversed in part, and remanded.

CORE TERMS

manufacturer, hip, polyethylene, liner, wear, warranty, common-law, socket, replacement, proximately, metal, cup, implanted, mismatch, conform, deposition, surgery, nonmoving, genuine, DEFENDANT-APPELLEE, deterioration, announcement, preempted, survives

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Judgments, General Overview, Burdens of Proof, Opposing Materials, Genuine Disputes, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Remedies, Damages, Compensatory Damages, Torts, Products Liability, Theories of Liability, Breach of Warranty, Misrepresentation, Commercial Law (UCC), Contract Provisions, Warranties, Implied Warranty of Merchantability, Contracts Law, Contract Conditions & Provisions, Implied Warranties, Strict Liability, Governments, Courts, Common Law, Negligence, Legislation, Effect & Operation, Operability, Interpretation, Real Property Law, Torts, Construction Defects, Types of Defects, Manufacturing Defects, Evidence, Admissibility, Circumstantial & Direct Evidence, Types of Evidence, Circumstantial Evidence, Negligence, Elements, Elements, Causation, Healthcare Law, Actions Against Facilities, Agency Relationships, Respondeat Superior, Proof, Custom, Expert Testimony, Facility Liability, Hospitals, Healthcare Litigation, Actions Against Healthcare Workers, Evidence, Standards of Care, Special Care, Highly Skilled Professionals, Vicarious Liability, Employers