Pennsylvania Court Dismisses Eight Counts in Zimmer Knee Lawsuit

Marina Kee filed a lawsuit against Zimmer, Inc. on August 24, 2011. Kee claimed to have experienced Zimmer knee problems, such as device loosening, which cause her pain, suffering and, eventually, required Zimmer knee revision surgery. Kee’s case joined other Zimmer knee lawsuits to claim breach of express and implied warranties, negligent design and manufacture, failure to warn, fraud, and defective design. Her nine-count case was first filed in Court of Common Pleas of Philadelphia County, but was later removed to the U.S. District Court for the Eastern District of Pennsylvania where, according to state law, the court dismissed all but one count in Kee’s lawsuit.

Zimmer knee problems emerge less than two years after initial surgery

On September 29, 2009, Marina Kee received bi-lateral total replacements with the Zimmer NexGen, Legacy Posterior Stabilized flex knee system (Zimmer LPS system). Not two years later, Kee began experiencing pain in her left knee. Her doctors diagnosed her Zimmer knee problems as device loosening of the tibial component, and Kee underwent Zimmer knee revision surgery on March 18, 2011.

Court only approves claims of negligence for Zimmer knee lawsuits

After Kee filed her complaint in the Court of Common Pleas of Philadelphia County, Zimmer successfully petitioned that it be removed to state court. There, the defendant filed a motion to dismiss eight of the nine counts stated in Kee’s lawsuit. On May 17, 2012, the Court reached its decision. In short, Pennsylvania state law does not allow strict-liability and implied-warranty claims against prescription medical device manufacturers – makers of devices labeled as “unavoidably unsafe products.” More specifically, the Pennsylvania Supreme Court stated that, “where the adequacy of warnings associated with prescription drugs is at issue, the failure of the manufacturer to exercise reasonable care to warn of dangers, i.e., the manufacturer’s negligence, is the only recognized basis of liability.” Therefore, the Court dismissed all counts except Kee’s accusation of negligence.

Plaintiff’s case reduced to one count of negligence

Kee’s attorneys recognized the law, but argued that the PA Supreme Court should not impose a “blanket exemption” on Zimmer – or other medical device manufacturers. Instead, they suggested analysis on a case-by-case and product-by-product basis, to determine whether a product is indeed “unavoidably unsafe.” The Court dissented, stating, “this is not the law in Pennsylvania.” Additionally, state law dictates that a device manufacturer is only responsible to disclose information to physicians, and not consumers, so patients do not have cause of action against manufacturers. As such, Kee’s claims of strict liability, breach of warranty, and unfair trade practices were eliminated from her lawsuit. The court also stated that Kee had failed to “allege conduct necessary to support an award of punitive damages.” Her case will join other Zimmer knee lawsuits to argue strictly on the basis of corporate negligence.

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