We saw the news yesterday about DePuy discontinuing two of their lines of hip implants, which have been involved in some litigation. While we are not ignorant of the impact of litigation on business or the impact of discontinuation/withdrawal/recall on litigation, we do hate to see situations where the availability of useful medical products can be affected by the number of lawsuits drummed up through waves of lawyer advertising. We do not know the merits of the cases involving these products, except to the extent we have seen some decisions on pleading and preemption, but we do know we see ads to bring suit about these products everywhere we turn, even as annoying pop-ups on “free” apps. We ran across a case approaching consideration of the merits on a case involving another one of DePuy’s hip implant products. In Rydzewski v. DePuy Orthopedics, Inc., No. 11-80007-Civ-Williams, 2012 U.S. Dist. LEXIS 187963 (M.D. Fla. Aug. 14, 2012), most but not all of plaintiff’s claims were kicked on summary judgment. (You ask why we post now on a decision from 9 months ago. Well, first, we do what we want, and, second, it was just “published” by Lexis last week.)
When we started reading the Rydzewskidecision, we thought we were not going to like it. As we have said before, the language the court uses to describe the plaintiff and his/her injury often foretells the result. Here, the plaintiff was described as “6’1” in height and 230 pounds in weight, and  a physically active police officer,” and his alleged injury was described as “when the femoral stem of the device fractured, disabling him and causing severe pain . . . [and s]ince that time [plaintiff] has experienced constant pain and significant physical limitations.” We say “alleged injury,” but the court did not use that qualifier. Nor did it need to describe extent of plaintiff’s damages to rule on a fairly straightforward motion for summary judgment based on whether plaintiff had established a prima facie case for any of his asserted causes of action.