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Kane v. Zimmer Biomet Holdings, Inc.

United States District Court, D. Maryland

August 22, 2018

SUZANNE AND MICHAEL KANE, Plaintiffs,
v.
ZIMMER BIOMET HOLDINGS, INC., et al., Defendants.

          MEMORANDUM OPINION

          Richard D. Bennett, United States District Judge.

         Plaintiffs Suzanne and Michael Kane (collectively, “Plaintiffs”) bring this products liability action against Defendants Zimmer Biomet Holdings, Inc., Zimmer, Inc., and Zimmer U.S., Inc.[1] (collectively, “Defendants” or “Zimmer”), stemming from products inserted into Suzanne Kane during a revision of a total hip arthroplasty. (Am. Compl., ECF No. 25.) Currently pending before this Court is Defendants' Partial Motion to Dismiss the Amended Complaint.[2] (ECF No. 31.) Specifically, Defendants move to dismiss Plaintiffs' claims for negligent misrepresentation (Count V), fraudulent misrepresentation and concealment (Count VI), and punitive damages. (Id.) The submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the following reasons, Defendants' Motion (ECF No. 31) is DENIED.

         BACKGROUND

         In ruling on a motion to dismiss, this Court “accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)). On June 5, 2009, Plaintiff Suzanne Kane (“Mrs. Kane”) underwent a total hip arthroplasty of her right hip. (Am. Compl., ECF No. 25 at ¶ 21.) Two years later, on or around June 14, 2011, she underwent a revision of the total hip arthroplasty. (Id.) The revision surgery was performed by Dr. Fran R. Ebert, M.D. (“Dr. Ebert”) at Union Memorial Hospital in Baltimore, Maryland. (Id.) During the surgery, Dr. Ebert implanted the Zimmer VerSys Fiber Metal Taper Stem and Zimmer VerSys Femoral Head (the “Products”) into Mrs. Kane's right hip. (Id. at ¶¶ 1-2.) Zimmer, Inc. designed, tested, manufactured, packaged and sold the Products.[3] (Id. at ¶ 10.)

         Plaintiffs allege that prior to Mrs. Kane's surgery in June of 2011, “Zimmer, Inc. through its written literature, advertisements, the Products' instructions for use, and its sales representatives, including Brian Lorber and/or John Hovis, made false representations to Mrs. Kane's implanting surgeon, Dr. Frank R. Ebert.” (Id. at ¶ 25.) Specifically, Plaintiffs allege that:

119. Defendant Zimmer, Inc., by its Executives, Directors, Staff and/or Research Engineers and/or other employees expressly warranted in its written literature, instructions for use, advertisements, and representation of its representatives and agents, including Brian Lorber and John Hovis, that:
a. The hip implant was safe, effective, fit and proper for the use for which it was intended and for future use;
b. The hip implant would not fail during normal usage and would perform for its proper use in the future;
c. The hip implant was not associated with an increased risk of developing corrosion, metal fatigue, or stress fractures;
d. The hip implant was properly designed, manufactured and included adequate warnings about the risks involved in their use;
e. The hip implant used adequate materials that were not susceptible to corrosion, metal fatigue, stress fracture and failure;
f. The hip implant minimized stress concentrations on the neck/stem components;
g. Zimmer, Inc. adequately studied and/or tested the hip implant for the possibility of developing corrosion, metal fatigue, stress fracture and/or failure;
h. The hip implant was inspected for signs of corrosion, metal fatigue, stress fracture and/or faulty manufacture prior to the device's sale, distribution or supply; [and]
i. Zimmer, Inc. had proper quality control procedures in place with respect to the hip implant[.]

(Id. at ¶ 119.) Plaintiffs allege that Zimmer did not have sufficient information to make these representations. (Id. at ¶ 121.) Further, Plaintiffs allege that at the time the misrepresentations were made Zimmer concealed from Mrs. Kane and her surgeon “the information that was being generated from the post marketing surveillance of the implantation of the devices-specifically that an increased risk of fretting and corrosion was associated with the products.” (Id.) Dr. Ebert, trained to rely on information from medical device ...


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