Tuesday, July 28, 2009

Beck and Herrmann: Settlement Gurus!

We've figured out how to settle a pending case!

And we'll share our solution at the end of this post!

Read on for the details.

In Hunt v. DePuy Orthopaedics, No. 03-900 (RWR), 2009 U.S. Dist. LEXIS 61644 (D.D.C. July 20, 2009), Martha Hunt, a citizen of Maryland, underwent hip replacement surgery with a DePuy product in the District of Columbia in January 1994. In 1999, Hunt underwent a repair surgery during which the original hip implant was removed. After the 1999 surgery, a DePuy representative requested, and received permission to take, the original, explanted device. Four years later, Hunt asked DePuy to return the explanted hip.

In 2003, Hunt sued DePuy in federal court in the District of Columbia for breach of express warranty (that the hip would last "25 years to life"), breach of implied warranties, and replevin.

DePuy moved for summary judgment.

Hunt abandoned her express warranty claim, so the court dismissed it. Id. at *3 n.1.

The federal court quickly decided that D.C. substantive law on the statute of limitations applied to the implied warranty and replevin claims.

The four-year statute of limitations for breach of implied warranty began running on the date of the original surgery -- January 10, 1994 -- and expired in 1998, so Hunt's 2003 lawsuit appeared to be time-barred. Hunt pursued two avenues to resurrect the seemingly time-barred claim.

First, Hunt tried to proceed under an exception to the statute of limitations for warranties that "extend to future performance." Id. at *7-*8. The court found, however, that the complaint did not plead warranties that were "explicitly extended to future performance." Id. at *7.

Second, Hunt said that, under the "discovery rule," the statute of limitations should not have begun to run until Hunt learned about the product's defect after it was removed. Id. at *9. The court found, however, that the discovery rule "'does not apply to determine when the statute of limitations begins to run for breach of warranty product liability claims. Rather, under [Sec. 28:2-725], the statute of limitations accrues when tender of delivery of the warrantied product is made.'" Id. at *10 (citation omitted). "Even though Hunt was unaware of the product's defect until 1999, . . . the statute of limitations started when the prothesis was delivered to her in 1994 and expired in 1998." Id.

Finally, replevin: Hunt wanted DePuy to return to her the explanted hip.

DePuy raised as a defense the three-year statute of limitations applicable to replevin claims in D.C. DePuy had taken the hip (with Hunt's consent) back in 1999, so the limitations period seemingly expired in 2002. But Hunt asserted -- and the court agreed -- that there was nothing "wrongful" about DePuy's original taking of the hip in 1999. The "wrongful withholding," which is needed to state a replevin claim, didn't start until Hunt demanded the return of the hip in 2003. The replevin claim was thus not time-barred. Id. at *12.

We didn't realize until we read this case that we had a natural aptitude for resolving cases.

But we've figured out how to settle this one.

Hey, DePuy! Give the lady back her explanted hip!

(You don't want it that badly, anyway.)

If you don't have the hip -- which the court suggests in footnote 4 -- then we still know how to settle this case!

Tell Ms. Hunt that you don't have her hip! Maybe even tell her where it is!

There! We've done something socially useful at this blog. We've figured out how to resolve a pending case.

Maybe we should give up this litigation gig and go into the mediation business.

We're naturals!

1 comment:

Drugpain said...
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