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Deluca v. Portland Orthopaedics Ltd.

Fact Dispute Exists About Successors' Duty to Warn of Hip Implant's Defects, Risks

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MEMORANDUM OF DECISION & ORDER

*1 On September 25, 2015, Plaintiffs Rocco Deluca (“Rocco”) and Margaret Deluca (“Margaret”) (together, the “Delucas” or “Plaintiffs”) initiated this action against the Defendants Portland Orthopaedics Limited (“Portland”), Plus Orthopedics (“Plus”), Maxx Orthopedics, Inc., (“Maxx Ortho”), Maxx Health, Inc. (“Maxx Health”), Mipro US, Inc. (“Mipro US”) (together, the “Defendants”). The complaint alleges numerous claims that arise out of the alleged failure of a hip replacement device, the M-Cor Modular Hip System (“M-Cor”), which was surgically implanted into Rocco. See Docket Entry (“DE”) 1. The complaint asserts five causes of action: (1) strict products liability — failure to warn; (2) strict products liability — manufacturing defect; (3) strict products liability — design defect; (4) negligence; and (5) breach of implied warranty. Id. Portland and Plus both failed to appear in this action and as a result, the action against Portland was dismissed on May 12, 2016. Defendants’ Rule 56.1 Statement and Plaintiffs’ Counter-Statement of Undisputed Material Facts (“SOF”) 6.Presently before the Court is a motion for summary judgment filed by Maxx Health, Maxx Ortho and Mipro US (together, the “Moving Defendants”) pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 56, seeking summary judgment.For the reasons set forth herein, the Moving Defendants’ motion for summary judgment is granted in part and denied in part.I. BACKGROUNDA. THE FACTUAL BACKGROUNDOn January 5, 2009, Rocco, a New York resident, received an M-Cor implant during hip replacement surgery at Plainview Hospital in Plainview, New York. SOF 2. X-rays confirmed

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