There aren’t that many cases applying Wyoming law, but the recent Tolman v. Stryker Corp., ___ F. Appx. ___, 2016 WL 683315 (10th Cir. Feb. 19, 2016), does – and we like its reasoning. The injured plaintiff was in an unrelated accident and tore up his leg pretty badly (comminuted fracture). He had an intramedullary nail inserted to hold everything together while he healed, but since this is a product liability case, that didn’t happen. Instead plaintiff suffered a “[f]ailed gamma nail with nonunion.” Id. at *1.
Plaintiffs (husband and wife) tried to get by with some version of a malfunction theory/res ipsa loquitur, because they “never deposed their designated experts.” Id. at *2. Bad move. The trial court granted summary judgment and the Tenth Circuit eventually affirmed. The mere fact that an implant – particularly a weight bearing implant – broke does not create a jury question that it was defective.
Plaintiff claimed that the defendant had “misinterpreted the medical records” and that nonunion was not a “secondary cause” preventing a malfunction from creating an “inference of defect.” Id. The court of appeals, however, found that “characterization of the medical records is not plausible.” Id.
Plaintiff’s fallback position was that the implant had “failed at its designed task, during its normally designated time frame” – in other words, any break was a defect. Id. Sorry, that theory doesn’t go anywhere without an expert: