Aebischer, Lenore v. Stryker Corporation ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1954
LENORE AEBISCHER,
Plaintiff-Appellant,
v.
STRYKER CORPORATION and
HOWMEDICA OSTEONICS CORPORATION,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05 C 2121—Michael P. McCuskey, Chief Judge.
____________
ARGUED JANUARY 16, 2008—DECIDED AUGUST 1, 2008
____________
Before MANION, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Lenore Aebischer’s artificial hip
unexpectedly began to cause her pain less than four
years after it was implanted, and she soon underwent
surgery to replace it. After the surgery her doctor con-
cluded that the device had suffered “advanced or cata-
strophic failure.” Aebischer sued the manufacturer and
its parent company, alleging that the product was defec-
tive, but the district court dismissed her lawsuit under
Illinois’ two-year statute of limitations because Aebischer
2 No. 07-1954
had filed suit more than two years after learning that her
hip would need to be replaced.
We reverse. The statute of limitations began to run only
when Aebischer should have realized that her injury
might have been wrongfully caused, and a jury could
reasonably conclude that Aebischer filed suit within two
years of that date. Accordingly, we remand the case for
trial.
I. Background
In December of 1997, Lenore Aebischer, then 44, under-
went surgery to replace her left hip with a prosthetic
device. Her doctor, Peter Bonutti, warned that prosthetic
hips do not last forever, noting that she was at increased
risk for wear because she was young and physically active.
Still, he estimated that her new hip would last 15 to 20
years.
That estimate proved to be overly optimistic. In early
2001—less than four years after her hip replacement—
Aebischer began to experience groin pain and had diffi-
culty standing and walking. At first Dr. Bonutti did not
know what was wrong, although he noted “small wear
around the socket” and was concerned that she might
have “osteolysis,” a condition involving dissolution or
degeneration of bone tissue that can be caused by wear
or infection.
Aebischer continued to experience pain and returned
to Dr. Bonutti several times for further evaluation. By
January of 2002, Bonutti confirmed that Aebischer had
osteolysis and concluded that particles of plastic from the
prosthetic hip had gotten between the implant and her
No. 07-1954 3
bone, wearing away the bone and causing her new hip to
loosen. Bonutti told Aebischer that she would need a
replacement hip, but she put off surgery, returning
several times over the next year and a half for follow-up
care. Each time, Bonutti told her that she needed a sec-
ond hip-replacement surgery.
On June 16, 2003, Bonutti performed a second surgery
to replace Aebischer’s failing prosthesis and discovered
that the “osteolysis and osteolytic lesions were much
worse than the radiographs even suggested.” After
surgery he told Aebischer that her first prosthetic device
had exhibited “advanced or catastrophic failure.”
Aebischer waited until April 14, 2005—nearly two
years after her surgery—to file a lawsuit against
Howmedica (the manufacturer of the prosthetic) and
Stryker (its parent) asserting various product-liability
claims. The defendants removed the suit to the federal
district court, which granted summary judgment to the
defendants, concluding that Aebischer had filed her
suit after the two-year statute of limitations had expired.
See 735 ILL. COMP. STAT. 5/13-202. In the district court’s
view, Aebischer was on notice by January of 2002 that
her hip problems might have been wrongfully caused. At
that point, the court concluded, the two-year statute of
limitations began to run, and because Aebischer had
waited substantially longer than two years to file suit,
her claims were barred. Aebischer appealed.
II. Discussion
Under Illinois law, which governs this case, lawsuits
seeking recovery for personal injury must normally be
filed within two years of the injury. 735 ILL. COMP. STAT.
4 No. 07-1954
5/13-202. But for injuries that are not readily discoverable,
the law makes an exception: the two-year clock begins
to run only when the victim (1) discovers her injury and
knows that it was wrongfully caused or (2) has “sufficient
information concerning [the] injury and its cause to put
a reasonable person on inquiry to determine whether
actionable conduct is involved.” Daubach v. Honda Motor
Co., 707 N.E.2d 746, 750 (Ill. App. Ct. 1999).
The district court concluded that Aebischer was on
“inquiry notice” that her injury might have been wrong-
fully caused by at least January of 2002, when her doctor
explained that she had osteolysis, that her hip was loosen-
ing, and that particles from her prosthesis had gotten
between the prosthesis and her bone, wearing it away.
Because Aebischer did not file suit within two years of
that date, the court concluded that she had sued too late.
Aebischer agrees that she was aware of her injury by
January of 2002 but claims that she had no reason to
suspect that the injury was caused by wrongdoing until
June of 2003 (well within the statute of limitations),
when Dr. Bonutti told her after her second surgery that
her prosthetic device was in a state of “advanced or
catastrophic failure.”
Usually the date on which a plaintiff receives inquiry
notice is a fact question for the jury. See Kedzierski v.
Kedzierski, 899 F.2d 681, 683 (7th Cir. 1990); see also Castello
v. Kalis, 816 N.E.2d 782, 788-89 (Ill App. Ct. 2004) (“In
most instances, the time at which a plaintiff knows or
reasonably should have known both of the injury and that
it was wrongfully caused will be a disputed question of
fact.”). Summary judgment is appropriate only if the
jury could draw but one conclusion from the evidence. See
Kedzierski, 899 F.2d at 683; FED. R. CIV. P. 56. The district
No. 07-1954 5
court held that a jury could draw only one conclusion,
but we think there was sufficient evidence to allow a jury
to side with Aebischer.
Before Aebischer’s first surgery, Dr. Bonutti had specifi-
cally advised her that she was at increased risk for wear
and loosening of her prosthetic hip because she was
young, active, and had an unusually small hip socket.
Given these warnings, a jury might conclude that
Aebischer reasonably attributed her hip problems to her
small socket and high activity level and that she initially
had no reason to suspect they were wrongfully caused.1
See Clark v. Galen Hosp. Ill., Inc., 748 N.E.2d 1238, 1243 (Ill.
App. Ct. 2001) (when injury is “an aggravation of a physi-
cal problem which may naturally develop, absent
negligent causes, a plaintiff is not expected to immedi-
ately know of either its existence or potential wrongful
cause”) (internal quotation marks omitted); Hochbaum v.
Casiano, 686 N.E.2d 626, 630 (Ill. App. Ct. 1997) (when “the
alleged negligent cause of an injury is unknown to the
plaintiff at the time the injury is sustained, and another
non-negligent cause is apparent, then the limitations
period does not begin to run until the alleged negligent
cause is discovered”); see also Aspegren v. Howmedica, Inc.,
472 N.E.2d 822, 824 (Ill. App. Ct. 1984) (jury might con-
clude that plaintiff could not have realized her fractured
hip implant was defective until after it was removed).
That is not to say a jury will necessarily conclude that
Aebischer’s failure to suspect wrongdoing was reason-
1
In fact, one of Howmedica’s defenses to Aebischer’s product-
liability claims is just that: Aebischer’s activity level and small
socket caused excess wear.
6 No. 07-1954
able. A reasonable jury might also conclude that Aebischer
was on “inquiry notice” of the wrongful cause of her
injury in January of 2002. As the district court noted,
Aebischer’s implant failed after less than 5 years, which
was markedly less than the 15 to 20 years Dr. Bonutti had
originally predicted, and his prediction attempted to
account for her youth and activity level.
The reasonableness analysis may turn on when Dr.
Bonutti seriously considered the possibility of a product
defect and whether he communicated his suspicions to
Aebischer, cf. Clark, 748 N.E.2d at 1247 (jury might deter-
mine that plaintiff reasonably believed her baby died of
nonwrongful causes until being told otherwise by expert),
a question that cannot be resolved on the current record.
Bonutti testified that prior to the second surgery, he
believed Aebischer’s rapid wear to be unusual, but the
record does not indicate whether he attributed the wear
to Aebischer’s activity level and socket size or whether
he also suspected a product defect before surgery. It is
also not clear whether Bonutti’s ultimate conclusion
about the cause of Aebischer’s hip failure was influenced
by the large amount of bone damage he found during
surgery, which was much worse than he had expected
based on presurgery x-rays.
Nor is it clear that Bonutti communicated his suspi-
cions—if he had them—to Aebischer prior to her second
surgery. At his deposition Bonutti had difficulty remem-
bering what he had told Aebischer and when. He could
not remember whether he had told Aebischer in January
of 2002 that her results were abnormal. And he was
also unclear about what he told her in April of 2003.
When asked whether he had told Aebischer that her
results were unusual in April of 2003, Bonutti first said,
No. 07-1954 7
“That is correct.” Then he interrupted himself and ex-
plained that he couldn’t “remember specifics.” Finally,
he sidestepped the question, answering simply, “[T]his
was very rapid and unusual in my clinical practice.”
Given the evidence in the record, a jury could reason-
ably decide that Aebischer was not on “inquiry notice”
until June 2003 and that she filed suit within the two-year
statute of limitations. Summary judgment was therefore
inappropriate. We REVERSE the judgment of the district
court and REMAND for a trial.
USCA-02-C-0072—8-1-08