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White v. DePuy8/17/1998
care. Id.
Despite the common elements of these two causes of action, we find that the statute does not supplant the common-law theory. The legislature did not expressly do so. In addition, critical distinctions exist between the two theories, not the least of which is an additional burden that the statute places upon plaintiffs to show that a product deviates from "design specifications, formula, or performance standards of the manufacturer, or from otherwise identical units." Accordingly, we find that the common-law cause of action of implied warranty in tort continues to exist even after the enactment of the Ohio Products Liability Act in 1988.
Returning to our analysis of the Whites' claims in this case, we find that there is no evidence in the record to support the statutory claim under R.C. 2307.74. In particular, there is no evidence concerning "design specifications, formula, or performance standards of the manufacturer" or of any failure by DePuy to meet them. Therefore, we find that summary judgment was properly granted on this claim. It is also apparent from the complaint that the Whites pled a common-law cause of action for implied warranty. We now address the merits of that claim.
In support of their motion for summary judgment, the Whites rely almost entirely on the deposition testimony of Fox and the announcement by DePuy recalling defective liners. In his deposition taken on October 9, 1996, Fox testified about the events preceding Gloria White's second hip replacement. Gloria White first complained of pain from her artificial hip in October 1992snearly three years after her first hip replacement. An x-ray taken at that time revealed a "loss of centricity" of the femoral head within the plastic socket, suggesting that "there was wear occurring in the socket itself." In later visits, Gloria White complained of pain, but Fox concluded that she was having "pain of a muscular origin." In June 1994, after talking with Glen White, Fox learned that Gloria White was experiencing popping and cracking in her hip, and her hip was "slipping in and out." Subsequent x-rays showed a "tremendous, tremendous change * * * where there was almost total loss of polyethylene thickness in the lateral portion of the acetabular polyethylene liner and metal was contacting metal apparently and it even looked like the metal likely dislocated partially or cut through some of the metal * * * out of the socket." In Fox's opinion, this situation "demanded" a second operation on White's hip.
During the second surgery, Fox found a "crank-case-type fluid" in the joint that indicates "metal on metal wear." To Fox, the presence of this fluid suggested that "most likely the ball was actually now not rubbing against the liner any more but instead rubbing against the metal shaft[.]"
When asked about the deterioration in White's prosthesis, Fox testified that wear in a hip replacement component is "inevitable," and that acetabular wear is a "documented phenomenon." According to Fox, hip prostheses ordinarily have a wear pattern of one or two millimeters per year. While they are designed to last ten years, "some [hips] wear faster than others." For instance, replacement hips in active young people tend to wear faster than those in more sedate older people.
In a second deposition taken on July 30, 1997, Fox listed some of the factors that contribute to acetabular wear. These include (1) age, (2) "the mechanics of the polyethylene," (3) the continuity and consistency of the polyethylene, (4) the 99 mechanical design of the implant," (5) a mismatch between ball and socket, and (6) "less than perfect spherical contact." In Gloria White's case, Fox con
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