Toxic Hip-Implant Suit Needs Work, Judge Says

     (CN) – A woman who says her hip implant poisoned her with cobalt, about a year after Smith & Nephew recalled it, must amend her claims, a federal judge ruled.
     Deborah Becker was given a Smith & Nephew hip implant in mid-August 2007, and learned in April 2013 that the manufacturer had voluntarily recalled its product nearly a year earlier, on June 1, 2012, according to the complaint.
     When Becker’s blood work revealed high levels of cobalt toxicity in her system, doctors removed and replaced the defective implant on Sept. 6, 2013, the complaint continues.
     Becker and her husband, Raymond, later sued Smith & Nephew Inc. for negligence in Newark, N.J., but Smith & Nephew persuaded U.S. District Judge William Walls to dismiss the action on Jan. 20.
     Noting that the Beckers did not timely respond to Smith & Nephew’s motion – only mailing the court a short letter on Dec. 3 asking it to deny the motion, with Deborah’s alleged medical records attached – Walls said that the “barebones” allegations do not support a claim under the state Product Liability Act.
     “Plaintiffs do not allege facts to indicate that this particular implant deviated from the manufacturer’s specifications or otherwise identical units,” the unpublished ruling states. “The complaint does not allege that a defect existed when the product left the manufacturer’s control, specify how the defect proximately caused injuries to Deborah Becker, or identify her as a reasonably foreseeable end user of this particular device. The specific name of the implant does not appear in the complaint, nor does the medical condition which it was intended to treat. Though alleging ‘high levels of cobalt toxicity in [Deborah Becker’s] system,’ the complaint does not allege that the product was the proximate cause of this condition, or that the high levels caused a specific injury.”
     The complaint neither fully explains the alleged inadequate warning, the judge ruled.
     “There is no identification of the latent danger, assertion that the danger is not obvious, or allegation that defendant knew or should have known about it at a particular time,” Walls wrote. “The complaint is silent as to whether defendant gave a warning that did not reveal a particular danger, gave a warning that was untimely, or gave no warning at all. Plaintiffs do not assert that the inadequacy of the warning was the proximate cause of Deborah Becker’s injuries.”
     The Beckers also failed to detail an express warranty, according to the ruling.
     “It mentions neither an affirmation of fact by the defendant, nor a description of the goods, nor a sample or model which was the basis of a bargain,” Walls wrote. “The complaint does not specify how the device did not function as warranted or how plaintiffs relied on the warranty. This cause of action must be dismissed.”
     In rejecting the Beckers’ letter and alleged medical records, the judge found that all papers in response to a motion must be filed electronically.
     The Beckers have 90 days to amend their complaint, the ruling states.
     Smith & Nephew reported about $1.15 billion in revenue in the third quarter of 2014.

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