ANN AIKEN, District Judge
Plaintiff Jean Waters filed this personal injury products liability action against defendants Sulzer Orthopedics, Inc. and Centerpulse, Inc. (hereafter "defendant"). The complaint alleges that defendant manufactured and distributed an artificial knee component that was defective and unreasonably dangerous and that such defective component caused plaintiff personal injury. The defendant has moved for summary judgment, to exclude evidence pursuant to Federal Rule of Evidence 104, and to strike an affidavit for being in conflict with prior deposition testimony.
BACKGROUND
On September 11, 2000, plaintiff underwent surgery to have a partial knee replacement implanted. Plaintiff's surgeon, Dr. Brick Lantz, chose to use defendant's Natural Knee II Uni-Compartmental System partial artificial knee. During the surgery Dr. Lantz successfully installed the femoral portion of the implant. The bone cement, necessary to keep the implant in place, failed to adhere to the tibial baseplate portion of the implant. Dr. Lantz twice tried to install the tibial baseplate using two different batches of bone cement. The cement would not adhere to the implant even though it had correctly bonded to plaintiff's bone surfaces and to the femoral portion of the implant. Dr. Lantz discontinued attempts to install the defendant's partial knee replacement and performed a full knee replacement using a different manufacturer's artificial knee. Plaintiff suffered permanent injury due to the extended time her leg was in a tourniquet and due to the bone loss caused by removing the femoral portion of defendant's implant.
At his deposition, Dr. Lantz testified that he suspected the bone cement failed to adhere to the tibial baseplate due to a manufacturing defect in the baseplate. In an affidavit, Dr. Lantz opined that the baseplate itself was defective because he had ruled out other possible causes, such as a defect with the bone cement or improper installation of the baseplate.
Defendant's sales representative, John Duffy, observed plaintiff's surgery and corroborated Dr. Lantz's assertion that he had correctly installed the baseplate. At his deposition, Mr. Duffy testified that he observed Dr. Lantz, who was following normal procedures, apply the bone cement and attempt to install the tibial baseplate.
After the plaintiff's surgery, Dr. Lantz returned the tibial baseplate to the defendant for testing. Upon receipt of the tibial baseplate and prior to conducting any testing, defendant sterilized the baseplate in an autoclave.
At his deposition, defendant's product investigator, Gary Winters, testified that he suspected some contaminant on the surface of the tibial baseplate prevented the bone cement from adhering. Mr. Winters also stated that, in the past, some of defendant's implant components had become contaminated with silicone mold release agents and that such contamination can prevent bone cement from bonding to implant components. As to the implant at issue in plaintiff's case, Mr. Winters stated that he could not explain why the bone cement failed to adhere. Winters admitted, however, that defendant's sterilization process could have removed contaminants from the baseplate before he had an opportunity to examine it. Finally, when Mr. Winters tested the baseplate by applying bone cement, the first application of the cement failed to adhere.
Dr. Fred Hetzel, an organic chemist and one of plaintiff's experts, reviewed the relevant medical records, deposition testimony, and examined the baseplate that was used in plaintiff's surgery. Dr. Hetzel opined that the bone cement failed to adhere to the tibial baseplate used in plaintiff's surgery due to a contaminant on the baseplate. He further concluded that defendant's sterilization of the implant removed the contaminant before it could be examined or tested.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The materiality of a fact is determined by the substantive law on the issue. T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The authenticity of a dispute is determined by whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630.
DISCUSSION
Defendant asserts that summary judgment in its favor is appropriate because: (1) there is no evidence that defendant's product was defective and unreasonably dangerous; (2) the indeterminate defect theory upon which plaintiff relies is no longer good law; and (3) even if the indeterminate defect theory is still valid, it should not apply in this case.
There exists at least a disputed issue of fact that defendant's product was defective and unreasonably dangerous based on the evidence before the court. "One who sells . . . any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm . . . caused by that condition." Or. Rev. Stat. § 30.920(1) (2003). To establish that a product is defective and unreasonably dangerous, "the plaintiff must prove that, when the product left the defendant's hands, the product was defective and dangerous to an extent beyond that which the ordinary consumer would have expected." McCathern v. Toyota Motor Corp., 332 Or. 59, 79, 23 P.2d 320, 332 (2001). "Whether a product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer is a factual question to be determined by the jury."McCathern, 332 Or. at 77.
For purposes of summary judgment, I conclude that plaintiff has come forward with sufficient evidence to show a possible product defect. I find that genuine issues of material facts exist; therefore, I can not find as a matter of law that the defendant is entitled to judgment. Specifically, plaintiff presented the testimony of Dr. Lantz, Dr. Hetzel, Mr. Duffy, and Mr. Winters.
Dr. Lantz testified that he, twice, properly mixed the bone cement, applied it to defendant's baseplate, and installed the baseplate following the correct procedures. He further testified that the bone cement properly bonded to plaintiff's bone surfaces and to the femoral portion of the implant. Based on these observations, he concluded that there existed a defect with the baseplate that prevented the cement from adhering. Mr. Duffy, who observed the surgery, corroborated Dr. Lantz's testimony.
Mr. Winters testified that he suspected some contaminant on the surface of the baseplate that prevented the cement from adhering. He further stated that defendant previously had problems with silicone contaminating the surface of surgical implants and that such contamination could prevent cement from adhering to the implant. Finally, he stated that defendant's sterilization of the baseplate prior to inspection or testing could have removed a contaminant from the surface of the baseplate.
Dr. Hetzel's testimony was consistent with that of Mr. Winters. Dr. Hetzel concluded that a contaminant on the surface of the baseplate prevented the cement from adhering and that defendant's serialization of the baseplate removed the contaminant before it could be observed.
CONCLUSION
There exists a genuine issue of material fact as to whether defendant's product was defective; therefore, the defendant is not entitled to judgement as a matter of law. The defendant's motion for summary judgment (doc. 66) is denied. Further, defendant's motions to exclude evidence pursuant to Federal Rule of Evidence 104 (doc. 70) and to strike the affidavit of Brick A. Lantz, M.D. (doc. 77) are denied with leave to renew at trial. Finally, defendant's request for oral argument is denied as unnecessary.
IT IS SO ORDERED.