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Myatt v. Smith & Nephew, Inc.

United States District Court, W.D. Arkansas, Harrison Division

February 6, 2019

JOHN “JAY” MYATT PLAINTIFF
v.
SMITH & NEPHEW, INC. DEFENDANT

          MEMORANDUM OPINION

          TIMOTHY L. BROOKS DISTRICT JUDGE

         I. BACKGROUND

         This case involves the failure of a hip-replacement prosthetic device that was manufactured by Defendant Smith & Nephew and implanted in Plaintiff John “Jay” Myatt. The device at issue is identified as a “size 15 Synergy Femoral Stem implant, ” but for ease of reference will be referred to throughout this opinion as the “Synergy Stem.” In very simple terms, when a patient undergoes a hip replacement surgery using this device, the Synergy Stem-which is a metal shaft made of a titanium alloy-is driven into the patient's femur and then attached to a metal or ceramic femoral head. The femoral head is then inserted into the socket of the patient's pelvis.

         According to the undisputed facts, Myatt underwent a hip replacement surgery after he was involved in a serious car accident in 2004. The doctor who performed the surgery implanted the Synergy Stem in Myatt's right femur and connected the device to a femoral head, which was inserted into the right socket of Myatt's pelvis. Sometime within the next five years after the surgery, Myatt began experiencing pain and limited range of motion in his right hip. He was evaluated by Dr. Gordon Newbern, who diagnosed Myatt in 2009 with heterotopic bone growth[1] around the right pelvis and femur. Dr. Newbern determined that the excess bone that had developed around the site of the hip replacement was responsible for Myatt's symptoms of pain and limited range of motion.

         On October 8, 2009, Dr. Newbern performed surgery on Myatt, cutting the excess bone from around his hip, but leaving the Synergy Stem in place. Dr. Newbern's operative report described the procedure as follows:

There was a large amount of heterotropic [sic] bone emanating from the posterior ilium, essentially encasing the acetabular component. There was bone __ from the posterior greater trochanter, almost coming in contact with the heterotropic [sic] bone from ilium. The external rotators were bound up in this tissue, but most of the external rotators had been replaced by bone and no usable external rotator tissue remained. Once the soft tissue had been cleared and, at all times, taking care to avoid injury to the sciatic nerve, the heterotopic bone was removed with osteotomes, chiseling it away back to close to normal contours. The large amount of extra bone that had replaced the area of the femoral neck was also removed with reciprocating saw, and, in this fashion, systematically, all the extra bone around the hip was removed. There was significant amount of bone superiorly, which had been blocking abduction, and this was removed also. The hip was then dislocated. The Oxinium head was removed, and the bone and scar tissue were removed circumferentially around the hip. There was excess bone inferiorly, superiorly, and anteriorly, and this was all carefully removed.

(Doc. 24-7, pp. 2-3).

         Myatt testified that after the 2009 surgery, he limped less. (Doc. 24-5, p. 13). Dr. Newbern reported that Myatt “seemed to be feeling much better for having had the heterotopic bone removed and had made a good recovery[, ] but he still had stiffness with only 7 degrees of external rotation and 5 degrees of internal rotation but without discomfort.” (Doc. 31-1, p. 1).

         On June 30, 2016, nearly seven years after the 2009 surgery, Myatt's right hip gave way underneath him as he was walking across a parking lot. He was taken to the hospital, where x-rays showed the Synergy Stem had broken into two pieces at the area of the femoral neck. Myatt underwent another surgery on July 1, 2016, and Dr. Newbern removed the broken Synergy Stem and replaced it with a new hip prosthesis that was not manufactured by Smith & Nephew. Myatt then developed an infection at the site of the surgery, and on April 26, 2017, Dr. Newbern performed an operation to clean, remove, and replace parts of the new hip device. Myatt filed this lawsuit in the Circuit Court of Searcy County, Arkansas, on October 10, 2017, and it was removed to this Court by Smith & Nephew on November 9, 2017. See Doc. 1.

         In the Complaint (Doc. 3), Myatt asserts five causes of action against Smith & Nephew. Count I is a claim for negligence; Count II is a claim for strict products liability; Count III is a claim for a breach of the implied warranty of merchantability; Count IV is a claim for a breach of the implied warranty of fitness for a particular purpose; and Count V is a claim for a breach of express warranties. Smith & Nephew has moved for summary judgment on all Counts. Defendant has also filed three motions in limine to exclude some or all of the expert testimony of three of Myatt's witnesses: metallurgist William R. Coleman, damages expert Dr. Ralph J. Scott, and Myatt's treating physician, Dr. Newbern. Below, the Court will take up the motions in limine first, followed by the motion for summary judgment.

         II. LEGAL STANDARDS

         A. Exclusion of Expert Testimony

          The decision whether to exclude expert testimony is committed to a district court's discretion, subject to the Federal Rules of Evidence, including Rule 702. Johnson v. Mead Johnson & Co., LLC, 754 F.3d 557, 561 (8th Cir. 2014). Rule 702 states that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

         The Eighth Circuit has “boiled down” these requirements into a three-part test:

First, evidence based on scientific, technical, or other specialized knowledge must be useful to the finder of fact in deciding the ultimate issue of fact. This is the basic rule of relevancy. Second, the proposed witness must be qualified to assist the finder of fact. Third, the proposed evidence must be reliable or trustworthy in an evidentiary sense, so that, if ...

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