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Gutierrez v. Integrated Medical Technologies USA, LLC

United States District Court, N.D. Florida, Pensacola Division

June 4, 2019

GLORIA GUTIERREZ, Plaintiff,
v.
INTEGRATED MEDICAL TECHNOLOGIES USA, LLC, et al., Defendants.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE

         This cause is before the court on Cross-Motions for Summary Judgment filed by Plaintiff Gloria Gutierrez (ECF Nos. 103, 121, 122); by Defendant IMT Integral Medizintechnik AG (ECF No. 105) (“IMT-Integral”) (in which Defendant Integrated Medical Technologies USA, LLC (“IMT-USA”) joined (ECF No. 107)); and by Defendant K&W Associates, LLC (“K&W”) (ECF No. 113). Plaintiff and Defendants have both filed responses to the cross-motions, respectively (ECF Nos. 109, 116, 117, 124, 125, 126). This case was initiated by Plaintiff while she had retained counsel. Counsel, however, were granted permission to withdraw, and Plaintiff thereafter elected to proceed as a pro se litigant (ECF Nos. 82, 85, 89).

         In light of Plaintiff's pro se status, the case was referred to the undersigned to conduct all preliminary proceedings and issue any recommendations to the district court regarding dispositive motions. See N.D. Fla. Loc. R. 72.2(E); see also 28 U.S.C. § 636(b)(1)(B)(C); and Fed.R.Civ.P. 72(b).

         After careful consideration of all issues raised by the parties, it is the opinion of the undersigned that Defendants' motions for summary judgment should be granted and Plaintiff's denied.

         I. BACKGROUND

         Plaintiff's complaint concerns hip replacement surgery which was performed on her by Dr. Brett Smith, M.D., on January 10, 2013. During the surgery, Dr. Smith used a tool known as a “Woodpecker” device, which Plaintiff claims was defective and caused her injury. She thereby sues Defendant IMT-Integral as the manufacturer of the device, as well as Defendants IMT-USA and K&W as distributors of the device. Plaintiff sues Defendants under a theory of strict liability in tort based on the alleged defect in the Woodpecker device which rendered it unreasonably dangerous. She alleges that as a result of the defect and the resultant fracture the device caused in Plaintiff's femur, Dr. Smith was compelled to use different hardware for the implant, which brought on post-surgical complications resulting in “bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to earn money, and aggravation of a previously existing condition. The losses are either permanent or continuing and Plaintiff will suffer the losses in the future.” (ECF No. 21 at 6).

         The Woodpecker device used by Dr. Smith during the surgery uses air pressure to “broach” the patient's femur so that the artificial hip can be implanted on the femur (ECF No. 112-1 at 12).[1] Dr. Smith tested the Woodpecker before the surgery to make sure it was working properly, and the device did work properly for the first six broaches into the femur (ECF No. 112-1 at 12-14). On the seventh and final broach, however, the Woodpecker device “kicked, ” which led Dr. Smith to believe there was something wrong with the device, although at that point he was finished using it (ECF No. 112-1 at 12-13). Dr. Smith noted that the broach was in place, and he did not notice any fracture in the femur or any other problem (ECF No. 106-2 at 16). Dr. Smith then used a hand mallet to put the hip implant in place (ECF No. 106-2 at 16-17). It was at this time that Dr. Smith noticed a “calcar” fracture in Plaintiff's femur no longer than a centimeter in length (ECF No. 106-2 at 17-18, 19-21, 29). Dr. Smith opined that it was “more likely than not” that the Woodpecker device caused the fracture (ECF Nos. 106-2 at 34; 121-2 at 23, 49).

         Because of the fracture, Dr. Smith used a different type of implant with Ms. Gutierrez, one which uses a different “system” that “bypasses the fracture” (ECF No. 106-2 at 25). Dr. Smith provided that the difference was that he would have to use a two-stem hardware device rather than the one-stem device used during the process involving the Woodpecker (ECF No. 106-2 at 31, 59).[2] Dr. Smith also employed two small cables which were used to wrap around the femur in order to stabilize the fracture (ECF No. 106-2 at 21, 25). Dr. Smith acknowledged that other surgeons regularly use the non-Woodpecker procedure, and he stated that, as far as any patient would notice, there is ordinarily no difference between the two different procedures (ECF No. 106-2 at 26-27).[3]

         Dr. Smith related that calcar fractures such as the one that occurred with Plaintiff are a known complication of hip replacement surgery, and common enough that he discusses the possibility of fractures with all his patients before the surgery (ECF No. 106- 2 at 20, 26-28). He noted, however, that there is less risk of a fracture when using the Woodpecker device, and for that reason he prefers to use the Woodpecker (ECF No. 106-2 at 19). Dr. Smith also stated that the Woodpecker was more advantageous because it takes less surgical time, requires less bone loss to the femur, and is less expensive (ECF No. 106-2 at 59).

         Further, Dr. Smith stated that calcar fractures such as Plaintiff's routinely heal to the point that the patient can be weight-bearing in six to eight weeks. In keeping with that schedule, he examined Plaintiff approximately six weeks after the surgery and found that she had full range of motion (except for adduction motion, which was expected at this stage), that she was maintaining touchdown weight-bearing status, that her pain was controlled, that there was no tenderness in the area and the joint was stable, and that she was doing well overall (ECF No. 106-2 at 23-24). Dr. Smith further provided that, once the fracture heals and physical therapy commences, the long-term prognosis for the patient would be identical with those who did not experience fractures (ECF Nos. 106-2 at 29-31; 121-2 at 65). As for Plaintiff's subsequent injury to her shoulder, Dr. Smith did not agree her use of a walker following the surgery was reasonably expected to have caused shoulder issues because he treats hundreds of patients per year, has “patients on walkers all the time, ” and stated it would be very infrequent for any of them to develop shoulder pain (ECF No. 106-2 at 44-46). Dr. Smith additionally noted that Plaintiff had already been using a walker for at least six weeks before she had her surgery (ECF No. 106-2 at 62).

         Plaintiff was seen by R. Barry Lurate, M.D., for a second opinion with regard to her hip issue (ECF No. 106-3 at 4-5). His assessments included chronic right hip pain that was possibly related to the complications with her hip surgery; however, he stated that Plaintiff's pain was most likely related to degenerative disc disorder in her lumbar spine (ECF No. 106-3 at 9, 18). Dr. Lurate found no evidence that the implant in Plaintiff's hip was loose, and x-rays taken showed no complications in the hip area and otherwise that Plaintiff should be experiencing improvement in the area (ECF No. 106-3 at 7-9, 13). He also opined that, due to the nature of the surgery, a fracturing of the femur such as what Plaintiff experienced is always a possibility regardless of which particular surgical procedure is used (ECF No. 106-3 at 21-22). Dr. Lurate also acknowledged that discrepancies in leg length can result from hip surgeries but that this issue can arise regardless of the procedure employed or whether there were evident complications during the surgery (ECF No. 106-3 at 22). He also stated that issues with uneven leg lengths following the surgery can generally be remedied with shoe lifts (ECF No. 106-3 at 24-25).

         Plaintiff was also seen by Donald Dewey, M.D., for a second opinion (ECF No. 106-4 at 8-9). Dr. Dewey performed testing to determine whether there was any loosening of the implant or any abnormality in the femur which might suggest additional fracturing, injury, or infection, and the results were normal (ECF No. 106-4 at 16). Thus, Dr. Dewey found her to have a stable hip replacement but possibly a mild leg-length discrepancy. He stated that there was a possibility that her pre-op and post-op leg lengths were a little different, for which a heel lift might be needed, but over time she might improve to the point that the heel lift would no longer be needed (ECF No. 106-4 at 17).

         Dr. Dewey also confirmed that a calcar fracture can occur in the femur during hip replacement surgery regardless of which procedure is employed (ECF No. 106-4 at 10-11). He also noted that Plaintiff's medical history included avascular necrosis, which might have made her more susceptible to fracturing during the procedure (ECF No. 106-4 at 28-29). More generally, Dr. Dewey indicated that within six to eight weeks a hip-replacement patient would be able to bear weight on the leg, by twelve weeks would be 70 to 80 percent healed, and by six months would be definitely healed (ECF No. 106-4 at 11). Ultimately, he provided that he could not say within a reasonable degree of medical probability that her ongoing complaints of pain were caused by the malfunctioning of the Woodpecker device (ECF No. 106-4 at 36)

         In support of her claims, Plaintiff submits several, short, “To Whom it May Concern” letters written by doctors. First, she submits two such letters from Dr. Dewey, one dated August 18, 2014, approximately a year and a half after her hip replacement surgery, in which he states that Plaintiff was “status post January 2013 right total hip arthroplasty” and that she “has had some issues with ongoing pain, bursitis pain of her right hip . . . .” (ECF No. 121-2 at 7). Dr. Dewey also stated that Plaintiff had recently undergone a “reverse total shoulder arthroplasty on her right shoulder” that “had an excellent result but [she] still has weakness and issues with range of motion and strength” (ECF No. 121-2 at 7). The second letter from Dr. Dewey, ...


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