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White v. DePuy8/17/1998
WALSH, Judge.
Plaintiffs-appellants, Gloria and Glen White ("the Whites"), appeal a decision of Butler County Court of Common Pleas denying their motion for summarsjudgment 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 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 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, 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, 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 and sale of a defective product. Glen White sued for loss of consortium.
DePuy's attorneys took Fox's deposition testimony on October 9, 1996. In reviewing White's chart during that deposition, Fox realized that he had implanted mismatched hip replacement components into Gloria White. According to hospital records, Fox used a 32 min ball with a 28 min polyethylene-lined socket. Fox admitted during his deposition that this conduct falls below the acceptable standard of care for orthopedic surgeons. Ordinarily, according to Fox, the ball and socket should be the same size: "I would want a 28 head to go into a 28 socket." The Whites amended their complaint to add claims of medical negligence against both Fox and Mercy Fairfield, where White's first hip replacement was performed.
In September 1997, the Whites moved for summary judgment against Fox and DePuy, and DePuy filed a motion for summary judgment against the Whites. Mercy Fairfield also filed a motion for summary judgment. Following a hearing, the trial court denied the Whites' motion and granted DePuy's motion. In a separate judgment entry, the trial court granted the motion for summarsjudgment filed by Mercy Fairfield. The Whites appeal, presenting the following assignments of error for review:
Assignment of Error No. 1:
"The trial court erred in denying summary judgment to plaintiffs-appellants against defendant-appellee, Depuy, Inc. and in granting defendant-appellee, Depuy, Inc., summary judgment against plaintiffs-appellants."
Assignment of Error No. 2:
"The trial court erred in granting summary judgment in favor of defendant-appellee Mercy Hospital Fairfield."
Under their first assignment of error, the Whites assert that they are entitled to summary judgment against DePuy
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