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Grote v. Wright Medical Group, Inc.

United States District Court, Eighth Circuit

August 30, 2013

RICKY GROTE, Plaintiff,
v.
WRIGHT MEDICAL GROUP, INC. and WRIGHT MEDICAL TECHNOLOGY, INC., Defendants.

ORDER

DONALD E. O'BRIEN, Senior District Judge.

I. INTRODUCTION

The matter before the court is Defendants Wright Medical Group, Inc. and Wright Medical Technology, Inc.'s ("Defendants") "Second Motion to Strike Late Expert Disclosures" ("Motion") (docket no. 53).

II. RELEVANT PROCEDURAL HISTORY

On January 18, 2012, Plaintiff Ricky Grote filed a Complaint (docket no. 1) against Defendants, alleging design defect (Count I), inadequate instructions or warning (Count II), breach of post-sale duty to warn (Count III), negligence (Count IV), breach of implied warranty (Count V) and manufacturing defect (Count VI). On March 26, 2012, Defendants filed an Answer (docket no. 10), denying Grote's claims and asserting affirmative defenses.

A. Defendants' First Motion to Strike

On June 13, 2013, Defendants filed their First Motion to Strike (docket no. 24). In the First Motion to Strike, Defendants asserted that the supplemental expert reports that Grote submitted as to designated experts Mari S. Truman, M.S.M.E., P.E. and Fredrik W. Hetzel, Ph.D. on the last day of discovery-June 7, 2013-would cause prejudice if the court did not exclude them or extend discovery deadlines because Defendants would not have an opportunity to respond to the supplemental expert reports. Due to this alleged prejudice, Defendants requested that the court strike Grote's experts' supplemental reports, reopen discovery and/or continue the trial. On June 21, 2013, Grote filed a Resistance to the First Motion to Strike (docket no. 29). On July 29, 2013, the court held a hearing and heard oral argument on, among other things, the First Motion to Strike. See Amended Minute Entry (docket no. 54-1). At the hearing, the court denied the First Motion to Strike.

B. Defendants' Daubert Motions

On June 24, 2013, Defendants filed a Motion to Exclude the Expert Opinion Testimony of Dr. B. Sonny Bal ("Motion to Exclude Dr. Bal") (docket no. 32), a Motion to Exclude Truman (docket no. 33) and a Motion to Exclude Hetzel (docket no. 34) (collectively, " Daubert Motions").

On July 18, 2013, Grote filed a Resistance to the Motion to Exclude Dr. Bal (docket no. 43), a Resistance to the Motion to Exclude Truman (docket no. 44) and a Resistance to the Motion to Exclude Hetzel (docket no. 45) (collectively, " Daubert Resistances").

On July 25, 2013, Defendants filed a Reply in Support of the Motion to Exclude Dr. Bal (docket no. 50), a Reply in Support of the Motion to Exclude Truman (docket no. 51) and a Reply in Support of the Motion to Exclude Hetzel (docket no. 52) (collectively, " Daubert Replies").

At the July 29, 2013 hearing, the court heard oral argument on the Daubert Motions and reserved ruling. See Amended Minute Entry .

C. Defendants' Motion for Summary Judgment

On June 24, 2013, Defendants filed a Motion for Summary Judgment (docket no. 30). On July 19, 2013, Grote filed a Resistance to the Motion for Summary Judgment (docket no. 47). Grote also filed an Appendix in support of his Resistance to the Motion for Summary Judgment ("Grote's App'x") (docket nos. 42 and 47-3), which contained affidavits from Dr. Bal, Hetzel and Truman that Grote used to support both his Resistance to the Motion for Summary Judgment and his Daubert Resistances.[1] On July 30, 2013, Defendants filed a Reply in Support of the Motion for Summary Judgment (docket no. 58).

D. Defendants' Motion

On July 25, 2013, Defendants filed the Motion asking the court to strike the expert witnesses' affidavits included in Grote's App'x, which are referenced in Grote's Resistance to the Motion for Summary Judgment and Daubert Resistances. In the Motion, Defendants also ask that the court not consider the facts, opinions and qualifications included in these affidavits when ruling on the Motion for Summary Judgment and Daubert Motions.

At the July 29, 2013 hearing, the court did not hear arguments on the Motion because Grote had not yet had an opportunity to resist the Motion.

On August 7, 2013, Defendants filed a Supplementation to the Motion (docket no. 59). In the Supplementation to the Motion, Defendants withdraw their request that the court strike the affidavits of Grote's expert witnesses in light of the court's denial of Defendants' First Motion to Strike and the court's statements at the hearing. Instead, Defendants request to depose, in person, the three experts who provided affidavits in light of the new opinions expressed in the affidavits. On August 12, 2013, Grote filed a Resistance (docket no. 60).

III. FACTUAL BACKGROUND

In August 2004, Grote had a "size AR 15 long femoral neck... implanted into [his] right hip... as part of a right hip prosthesis" and a "varus anteverted long femoral neck... implanted into [his] left hip... as part of a left hip prosthesis." Complaint ¶¶ 15, 20. In January 2011, "the femoral neck component of his right total hip prosthesis" fractured as Grote was walking to his car, which required revisionary surgery. Id. ¶¶ 16-17. In April 2011, Grote had prophylactic revisionary surgery on "the femoral component of his left total hip arthroplasty, " which Grote claims was "necessitated by an impending stress fracture of the femoral neck of his left total hip arthroplasty." Id. ¶¶ 21-22.

In the Complaint, Grote asserts six claims against Defendants based on his alleged injuries due to the allegedly defective hip prosthesis that Defendants manufactured. Grote claims damages for "(a) past medical expenses; (b) future medical expenses; (c) past lost wages; (d) future loss of earning capacity; (e) past loss of full mind and body; (f) future loss of full mind and body; (g) past physical and mental ...


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