Marilyn Adams v. Zimmer US, Inc. ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3011
___________
MARILYN ADAMS,
Appellant
v.
ZIMMER US, INC.; ZIMMER HOLDINGS, INC.;
ZIMMER, INC.; ZIMMER SURGICAL, INC.
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civ. Action No. 5-17-cv-00621
District Judge: Honorable Edward G. Smith
______________
ARGUED: April 17, 2019
Before: AMBRO, GREENAWAY, JR., and SCIRICA,
Circuit Judges.
(Filed: November 20, 2019)
Charles L. Becker [ARGUED]
Ruxandra M. Laidacker
Kline & Specter
1525 Locust Street
19th Floor
Philadelphia, PA 19102
Joseph A. Osborne, Jr.
Andrew Norden
Ami Romanelli
Osborne & Francis
433 Plaza Real Boulevard
Suite 271
Boca Raton, FL 33432
Counsel for Appellant
Dana E. Becker
Troy S. Brown
Morgan Lewis & Bockius
1701 Market Street
Philadelphia, PA 19103
Bruce G. Jones [ARGUED]
Faegre Baker Daniels
90 South 7th Street
2200 Wells Fargo Center
Minneapolis, MN 55402
Michael J. Kanute
Faegre Baker Daniels
2
311 South Wacker Drive
Suite 4400
Chicago, IL 60606
Counsel for Appellees
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge
Pennsylvania’s discovery rule delays the start of the
statute-of-limitations period until a plaintiff knows or
reasonably should know she has suffered an injury caused by
another. This appeal requires us to decide whether a reasonable
juror could credit plaintiff Marilyn Adams’s contention that
she reasonably did not know until February 12, 2015 that the
hip implant made by defendant Zimmer, Inc., caused her the
injuries for which she now sues. When Adams brought a
defective design claim against Zimmer in February 2017,
Zimmer contended she should have discovered her injury by
January 2015, when she agreed to undergo hip implant revision
surgery. The District Court accepted Zimmer’s argument and
granted summary judgment on the ground that Adams’s claim
was untimely under the discovery rule and two-year statute of
limitations. In doing so, however, the District Court resolved
issues of fact regarding the timing of Adams’s discovery that
her hip pain was caused not by her poor adjustment to the
implant but instead by the implant itself. Because Pennsylvania
law delegates to a factfinder any genuine dispute over when a
3
plaintiff in Adams’s position should reasonably have
discovered her injury, we will reverse and remand.
I.
Plaintiff-Appellant Marilyn Adams had a long and
difficult history with hip pain.1 Adams first sought medical
help from orthopedic surgeon Dr. Prodromos Ververeli in
September 2010; he diagnosed her with advanced degenerative
arthritis and recommended a total hip replacement. Dr.
Ververeli counseled Adams that the hip replacement would last
fifteen to twenty years, though he warned her the implant may
wear down with use before then. Adams agreed to a hip
replacement and Dr. Ververeli performed the procedure on
January 18, 2011, implanting a Zimmer hip device.2
Adams had no further problems with her hip for roughly
a year and a half, but in late 2012, she started experiencing
severe pain. Dr. Ververeli described the cause of her problems
as “unclear” and the diagnostic process as “difficult.” App’x
958, 228. He ran various tests attempting to identify the pain’s
source, eventually diagnosing Adams with an infection.
Although he warned Adams that a severe infection may require
1
Because we review a grant of summary judgment against
Adams, we view all facts in the light most favorable to her and
draw reasonable inferences in her favor. See Debiec v. Cabot
Corp., 352 F.3d 117, 128 n.3 (3d Cir. 2003).
2
The implant is composed of several pieces, collectively
referred to as the “Zimmer implant”: a femoral head; a “neck”
that connects the femoral head to the stem; a stem that connects
the neck to the femur; and a socket that facilitates implantation.
4
removing part of her hip replacement, he was able to
successfully treat it in 2013 without removing the implant.
Adams’s hip problems returned in November 2014,
when she dislocated her hip while spending several months in
Florida. Doctors in the emergency room there put the implant
back in place, and Adams saw Dr. Ververeli when she returned
home in early January 2015. Dr. Ververeli ordered various
diagnostic tests, and an x-ray showed calcification around the
implant. Dr. Ververeli testified he thought this abnormal result
“could have been possibl[y] related to ongoing tissue reaction
or a reaction to the actual dislocation event.” App’x 232. He
ordered a CT scan, which showed a local adverse tissue
reaction.
Dr. Ververeli recommended hip revision surgery for
Adams to replace the metal femoral head of her hip implant
with a ceramic one. Though Adams was distraught to undergo
hip surgery again, she consented to the operation. She went in
for a pre-operative visit on January 30, 2015. Records from the
visit indicate Adams was suffering from “right total hip
metallosis,” App’x 166, which Dr. Ververeli testified is
defined, “typically,” as “metal wear that then causes a reaction
to the surrounding tissues”; he added the precise reaction varies
depending on the individual patient. App’x 218. Adams
testified she did not recall hearing about metallosis, but
remembered being distraught over her upcoming surgery. She
went into Dr. Ververeli’s office on February 9 to sign an
informed consent form, which generally repeated the
information she had been told in her pre-operative visit.
Adams underwent the revision surgery on February 12,
2015. Though Dr. Ververeli expected to replace only
5
components of the implant around the hip socket, what he
discovered during the surgery called for a different—and much
more drastic—revision: upon opening Adams’s hip, Dr.
Ververeli found her muscle had largely deteriorated and metal
debris had taken over much of the area. He discovered a
pseudotumor roughly the size of a baseball. Rather than
replacing the socket and implant lining, which were in fact
largely “intact,” App’x 235, he replaced all of the main
components of the implant hip, which had been discharging
excessive and potentially toxic metal debris into Adams’s hip.
Dr. Ververeli told Adams about his intraoperative findings
after her surgery.
Adams continued to experience hip pain after the
surgery, and on February 10, 2017, she brought a product
liability action against Zimmer.3 She alleged the implant was
defectively designed in a way that led to “excessive fretting”
(i.e., scraping between the pieces of the implant), corrosion,
and metal wear debris; she further alleged Zimmer had failed
to warn her of those risks. Zimmer moved for summary
judgment on the ground that Adams’s claims were time-barred.
The District Court agreed and entered summary judgment on
statute-of-limitations grounds. Adams appeals.4
3
Adams sued Zimmer US, Inc., Zimmer Holdings, Inc.,
Zimmer, Inc., and Zimmer Surgical, Inc. We refer to all the
defendants collectively as “Zimmer.”
4
The District Court had diversity jurisdiction under 28 U.S.C.
§ 1332 and we have jurisdiction over Adams’s timely appeal
under 28 U.S.C. § 1291. Like the District Court, we apply
Pennsylvania law in this diversity jurisdiction case. See
Debiec, 352 F.3d at 128. “We exercise plenary review over a
district court’s grant of summary judgment and apply the same
6
II.
A.
In Pennsylvania, a prospective plaintiff has two years to
bring a design defect claim like Adams’s. See 42 Pa. Cons.
Stat. § 5524(2). The two-year statute of limitations generally
begins to run “when an injury is inflicted.” Wilson v. El-Daief,
964 A.2d 354, 361 (Pa. 2009). But “where the plaintiff’s injury
or its cause was neither known nor reasonably ascertainable,”
the “discovery rule” tolls the statute of limitations. Nicolaou v.
Martin, 195 A.3d 880, 892 (Pa. 2018); Fine v. Checcio, 870
A.2d 850, 858 (Pa. 2005). The discovery rule accordingly
protects parties who are reasonably unaware of latent injuries
or suffer from injuries of unknown etiology. Nicolaou, 195
A.3d at 892 & n.13; Fine, 870 A.2d at 858.
Under the Pennsylvania discovery rule, the
“commencement of the limitations period is grounded on
‘inquiry notice’ that is tied to ‘actual or constructive
knowledge of at least some form of significant harm and of a
factual cause linked to another’s conduct, without the necessity
of notice to the full extent of the injury, the fact of actual
negligence, or precise cause.’” Gleason v. Borough of Moosic,
15 A.3d 479, 484 (Pa. 2011) (quoting Wilson, 964 A.2d at 364).
The statute of limitations accordingly begins to run when the
plaintiff knew or, exercising reasonable diligence, should have
known (1) he or she was injured and (2) that the injury was
caused by another. See Coleman v. Wyeth Pharms., 6 A.3d 502,
standard as the district court; i.e., whether there are any
genuine issues of material fact such that a reasonable jury could
return a verdict for the plaintiffs.” Id. at 128 n.3.
7
510–11 (Pa. Super. Ct. 2010). That “reasonable diligence”
standard is an objective one, but at the same time “sufficiently
flexible” to “take into account the differences between persons
and their capacity to meet certain situations and the
circumstances confronting them at the time in question.” Fine,
870 A.2d at 858 (internal citation omitted); see also Nicolaou,
195 A.3d at 893. Plaintiffs generally will not be charged with
more medical knowledge than their doctors or health care
providers have communicated to them. See Wilson, 964 A.2d
at 365. A plaintiff bears the burden of showing her reasonable
diligence. Nicolaou, 195 A.3d at 893.
“The balance struck in Pennsylvania” between the
rights of diligent plaintiffs and defendants who should not have
to face stale claims “has been to impose a . . . limited notice
requirement upon the plaintiff, but to submit factual questions
regarding that notice to the jury as fact-finder.” Gleason, 15
A.3d at 485. “[T]hat the factual issues pertaining to Plaintiffs’
notice and diligence are for a jury to decide” is a “well-
established general rule” in Pennsylvania. Nicolaou, 195 A.3d
at 894; see also Carlino v. Ethicon, Inc., 208 A.3d 92, 104 (Pa.
Super. Ct. 2019). “The interplay between summary judgment
principles and application of the discovery rule requires us to
consider whether it is undeniably clear that [Adams] did not
use reasonable diligence in timely ascertaining [her] injury and
its cause, or whether an issue of genuine fact exists regarding
[her] use of reasonable diligence to ascertain [her] injury and
its cause.” Gleason, 15 A.3d at 486–87. If such an issue of
diligence or notice exists, it is a jury’s role to resolve it.
“Where, however, reasonable minds would not differ in
finding that a party knew or should have known on the exercise
of reasonable diligence of his injury and its cause, . . . the
discovery rule does not apply as a matter of law.” Fine, 870
8
A.2d 858–59.
B.
The central issue in this case is whether a jury could
conclude Adams reasonably did not discover her injury until
February 12, 2015, when Dr. Ververeli apprised her of his
intraoperative finding that her implant had deteriorated and
emitted metal shards into her hip. The District Court concluded
there can be no dispute that the information available to Adams
in her preoperative visits would have put a reasonably diligent
person on notice of her injury as a matter of law. In reviewing
that determination at summary judgment we must “view the
record and draw inferences in a light most favorable to” Adams
as “the non-moving party.” Debiec v. Cabot Corp., 352 F.3d
117, 128 n.3 (3d Cir. 2003). Doing so, we cannot conclude that
summary judgment was appropriate. As in the several
Pennsylvania Supreme Court cases before this one, the
question “[w]hether [a plaintiff] should have acted with greater
diligence to investigate” or otherwise should have known of
her injury earlier “can only be seen as an issue of fact.”
Gleason, 15 A.3d at 487.
The Pennsylvania Supreme Court has paid particular
heed to the jury’s role in determining reasonable diligence in
medical contexts. The cause of a patient’s pain or discomfort
can be difficult for her to identify, so courts rarely impute
knowledge as a matter of law. The Court explained that
principle in Fine v. Checcio, 870 A.2d 850 (Pa. 2005), its
seminal treatment of the discovery rule in the context of
etiological uncertainty. There, Fine had experienced facial
numbness after having his wisdom teeth extracted. His doctor
advised him the numbness was a normal side-effect of the
9
surgery, but the numbness persisted for nearly a year. When
Fine filed a malpractice claim about two years and one month
after his wisdom tooth surgery, his doctor successfully
obtained a summary judgment; the doctor defendant argued the
limitations period began on the date of the extraction because
Fine knew his injury—numbness—then. But the Pennsylvania
Supreme Court disagreed. It held that a reasonable jury could
understand Fine’s numbness as “indicative of two distinct
phenomena”—temporary side effect or permanent injury. Id.
at 861. Because of that factual uncertainty, a jury might
determine a reasonable person in his position neither knew nor
should have known of his injury immediately after surgery.
The Court has continued to emphasize the principle that
diagnostic uncertainty usually creates a jury question. In
Wilson v. El-Daief, 964 A.2d 354 (Pa. 2009), for instance, the
Court held the plaintiff’s immediate suspicion of surgical error
after surgery did not start the statutory clock as a matter of law
because her surgeon denied error and the second opinion she
sought suggested surgical error as only one of several possible
explanations for her pain. Id. at 365–66. See also Gleason, 15
A.3d at 486–87 (similar). Most recently, in Nicolaou v. Martin,
195 A.3d 880 (Pa. 2018), the Court affirmed that principle:
Nicolaou was bitten by a tick in 2001 and immediately sought
a Lyme disease test; though her symptoms persisted, that test,
and three others administered over the next half dozen years,
all came back negative. She eventually saw a fifth healthcare
provider in 2009, who diagnosed her with probable Lyme
disease and recommended an advanced test. Nicolaou initially
declined to pay for the test for financial reasons, but ultimately
took it in February 2010. That test confirmed she had Lyme
disease. The Court held that Nicolaou—who brought suit about
two years after the February 2010 test—should be able to
10
present her case for reasonable diligence to a jury. Id. at 894–
95.
Like the plaintiffs in these Pennsylvania Supreme Court
cases, Adams has maintained that she acted with reasonable
diligence yet did not discover her injury until February 2015.
Adams’s claim here is that she did not know the nature of her
injury or that it was the deterioration of the Zimmer implant,
rather than her reaction to the implant, that was the cause. Just
as a jury could find the plaintiff in Fine ascribed his pain to
temporary post-operative numbness, so a jury could reasonably
conclude Adams ascribed her pain to her own poor adjustment
to the implant; it was only when her doctor discovered new
information “intraoperatively” that she would know the
implant’s disintegration, rather than her reaction to the implant,
was causing her pain. App’x 238.
To be sure, Pennsylvania’s discovery rule asks only
when Adams knew she was injured and that her injury was
caused by another. For the statute of limitations to start, she
“need not know that [the] defendant’s conduct is injurious.”
Wilson, 964 A.2d at 363. But that limitation on the
requirements for notice was developed in order to hold
plaintiffs to a standard of reasonable diligence: it operates to
bar a claim where “the plaintiff has failed to exercise diligence
in determining injury and cause by another, but has limited
relevance in scenarios in which the plaintiff has exercised
diligence but remains unaware of either of these factors.” Id.
Zimmer does not dispute that Adams investigated her claim in
coordination with Dr. Ververeli, see Oral Arg. Recording at
26:03–26:48, and a factfinder could reasonably determine that
Adams had exercised reasonable diligence. This strongly
counsels against determining notice as a matter of law.
11
Pennsylvania Supreme Court precedent further
illustrates that while the discovery rule does not require the
patient to have “a precise medical diagnosis” to start the statute
of limitations, “a lay person is only charged with the
knowledge communicated to him or her by the medical
professionals who provided treatment and diagnosis.”
Nicolaou, 195 A.3d at 893; see also Wilson, 964 A.2d at 365.
Adams has offered evidence that Dr. Ververeli himself did not
know her injury and its cause until he was in the middle of
operating on her hip in February 2015. Dr. Ververeli testified
that his understanding of the injury and its cause fundamentally
changed “intraoperatively,” App’x 238: he began the operation
planning to repair and replace the socket of the implant, which
he expected had worn down with Adams’s use, but the socket
was in fine shape. He instead discovered the implant hip itself
was corroding into Adams’s hip and causing her harm. Before
that revision surgery, Dr. Ververeli expected Adams was
adjusting poorly because “the longevity of the plastic [was]
wearing out” around the plastic-lined socket; as to the implant
and surrounding hip, he expected “normal appearance.” App’x
235. But once he began operating, Dr. Ververeli realized
Adams’s hip looked unlike the “many hip revisions [he had
done] in [his] career.” App’x 235. He testified: “[W]hen I
opened up Marilyn’s hip what became very abundant in this
reaction, it almost looked like debris where her muscle should
be as kind of replaced with this very friable, very fragile
membrane that had a vascularity to it.” App’x 235. Having seen
the interior of Adams’s hip, he formed the opinion that her
“adverse local tissue reaction [was] secondary,” i.e., not caused
by her body’s poor adjustment, but instead “a reaction to the
[Zimmer implant].” App’x 238. He agreed that the corrosion
and fretting that make up her injury were not, and could not, be
12
“detect[ed] until the time of the revision when the implant
[was] visible.” App’x 241.
A reasonable jury could accept Dr. Ververeli’s
conception of the injury and cause changed during the revision
surgery. And if Dr. Ververeli did not realize a problem with the
implant was injuring Adams until the revision surgery, under
Pennsylvania law Adams too cannot be charged with that
constructive knowledge. Reasonable jurors could accordingly
find Adams, though she knew she had trouble adjusting to her
implant, could reasonably not have known that the implant
itself was the cause of her injury.
In response, Zimmer points to various facts to contend
Adams had constructive or actual knowledge of her injury.
Though these facts are all relevant to a jury’s determination of
knowledge and reasonable diligence, none of them support
imputing knowledge as a matter of law.
First, Zimmer asserts Adams’s awareness that the
revision surgery would replace the Zimmer femoral head with
another brand of implant put her on actual or constructive
notice that the implant caused her injury. As Zimmer points
out, Adams testified that she would have objected had her
doctor proposed to replace the femoral head with another
Zimmer product. See App’x 167 (Adams Deposition) (“It just
seemed that something was wrong. It had to come out.”).5 But
5
The Dissent finds this statement necessarily represents actual
knowledge of injury and cause on Adams’s part. For the
reasons discussed below, Adams’s recognition that she had a
problem adjusting to her implant does not necessarily mean she
knew the Zimmer device, rather than her own reaction to it,
13
Nicolaou illustrates how a plaintiff’s after-the-fact recollection
of general suspicions does not start the statutory clock as a
matter of law. There, the Pennsylvania Supreme Court
reversed the lower court’s grant of summary judgment on
Nicolaou’s February 2012 medical negligence claim,
reasoning that even though a medical professional diagnosed
her with probable Lyme disease in July 2009, a reasonable jury
may believe she should not be charged with discovering her
injury until February 2010, when she formally received
positive Lyme disease test results. 195 A.3d at 884–85, 894.
The Court reached this conclusion despite recognizing a
Facebook post in which Nicolaou, after receiving her 2010
diagnosis, stated she had told everyone she had Lyme disease
“for years” and her previous doctors “ignored” her. Id. at 885,
887. Similarly, in Wilson the plaintiff’s after-the-fact testimony
that she knew at an earlier point “something is wrong
here[, s]omething is really wrong” did not start the statutory
clock as a matter of law. 964 A.2d at 358. The Court reasoned:
“Recognizing that the testimony provides substantial support
for Appellees’ position in the fact-finding inquiry, we conclude
that it does not unambiguously establish notice of injury and
cause, particularly in light of other portions of the testimony.”
Id. at 366.
Here, too, Adams has pointed to other parts of her
testimony and the record that a reasonable juror could credit.
Adams emphasizes that, like the plaintiffs in Nicolaou and
Wilson, she had a “difficult” diagnostic history that counsels
was the cause of her pain. We need not determine which is the
better understanding of her statement because the only
question for our review is whether reasonable minds could
understand it, and the rest of the facts, differently. As the two
opinions in this case illustrate, they could.
14
against quickly charging her with knowledge of an injury.
App’x 228. She moreover had confronted the possibility of her
implant being replaced once before, during her 2012–13
struggle with infection; the implant was ultimately left in place,
which could lead a reasonable person in her position to believe
surgery calling for removal did not mean the device itself was
causing her harm. Adams also asserts, and Dr. Ververeli
confirms, that she was extremely distraught in the time leading
up to the revision surgery, and a jury could understand her
aversion to a Zimmer replacement in this light: she was in pain,
so she wanted the device “to come out” without linking her
pain to a problem with the device. App’x 167. And ultimately,
a jury could reasonably credit her assertion that she then
believed she had a bad reaction to the device without yet
understanding she had an injury “caused by another party’s
conduct.” Nicolaou, 195 A.3d at 892.
Second, Zimmer contends that Dr. Ververeli, his staff,
and various pre-surgery paperwork actually notified Adams on
January 30, 2015 and February 9, 2015 that she was suffering
from “metallosis” and an “adverse tissue reaction” in advance
of the operation. Under Pennsylvania law, however,
knowledge of medical terminology like “metallosis” and
“adverse tissue reaction” is not sufficient to impute
constructive knowledge. See Coleman, 6 A.3d at 518 (“[A]
reasonable person [could] conclude that Ms. Coleman was
confused and uncertain about the significance of the fact that
her cancer was ‘estrogen positive.’ . . . A jury could reasonably
find that Dr. Webb’s comment that Ms. Coleman’s breast
cancer was ‘estrogen receptor positive’ did not constitute
notice to her that the etiology of her cancer was the HRT
medications.”). At any rate, Dr. Ververeli’s testimony that he
did not know Adams had an injury caused by the implant until
15
the revision surgery shows his “metallosis” diagnosis could not
have communicated the pertinent understanding of injury or
cause to Adams.6
While a jury may ultimately credit Zimmer’s contention
that Adams knew or should have known about her injury at
some point before the February 2015 revision surgery, Adams
has raised factual issues of notice and knowledge that
Pennsylvania law requires a jury to resolve.
III.
Because factual disputes remain concerning application
of the discovery rule, we will reverse and remand for further
proceedings.
6
Zimmer also asserts that Adams’s signed surgical consent
form from February 9, 2015 is independent evidence that she
had actual notice of injury by that date. But because the consent
form simply repeats the information Adams heard on her
January 30 preoperative visit, that argument rises and falls with
Zimmer’s other factual challenges. Like the rest of the facts it
points to, the February 9 consent form can be presented as
evidence to a jury but does not, as a matter of law, establish
actual notice.
16
GREENAWAY, JR., Circuit Judge, dissenting.
Pain is an overwhelming force in the human experience.
When one is in pain, the predominant thoughts are: “How and
when will this pain go away? Just get rid of the pain!”
Appellant Marilyn Adams (“Adams”) was sadly overwhelmed
with right hip pain. What was the source? Her hip prosthesis.
When was it apparent to her? Unfortunately for her, days
before she asserts—indeed, days before her hip revision
surgery. As such, she brought this action too late, since she
knew of her right hip pain and its connection to the allegedly
defective prosthesis before her surgery. Pennsylvania’s
discovery rule therefore does not save her cause. Because I
cannot steer clear of these facts, I cannot join my friends in the
Majority. I thus dissent.
I. BACKGROUND
After Adams began experiencing right hip pain in 2008,
she underwent total right hip replacement surgery at the hands
of Dr. Prodromos Ververeli (“Dr. Ververeli”) on January 18,
2011. During the surgery, Dr. Ververeli replaced Adams’s
natural right hip with a Zimmer M/L Taper Kinectiv Stem and
Neck and Versys Femoral Head (the “Zimmer Device”), a hip
prosthesis manufactured by Appellees Zimmer US, Inc.;
Zimmer Holdings, Inc.; Zimmer, Inc.; and Zimmer Surgical,
Inc. (collectively, “Zimmer”). For some time after the surgery,
Adams did well.
But, by September 21, 2012, Adams began
experiencing right hip pain again. Over the course of the next
three years, Adams met with Dr. Ververeli several times. After
pursuing and eliminating several potential causes for the pain,
Dr. Ververeli eventually concluded that she was suffering from
1
metallosis—metal wear from the Zimmer Device that was
causing an adverse reaction to the surrounding tissue. On
January 30, 2015, Dr. Ververeli shared his unequivocal
conclusion with Adams. On that same day, Adams decided,
based on Dr. Ververeli’s recommendation, to undergo hip
revision surgery to replace the Zimmer Device with another hip
prosthesis manufactured by a different company. On February
9, 2015, Adams signed an informed consent form for the
surgery, which indicated that Dr. Ververeli’s final diagnosis
was indeed metallosis.
Three days later, on February 12, 2015, Dr. Ververeli
successfully performed the hip revision surgery on Adams.
During the surgery, Dr. Ververeli replaced the Zimmer Device
with a ceramic device manufactured by a different
manufacturer. The surgery corroborated Dr. Ververeli’s final
preoperative diagnosis of metallosis, though he uncovered
even more corrosion of the Zimmer Device during the surgery
than he initially had imagined. Shortly after the surgery, Dr.
Ververeli discussed his surgical findings with Adams. A little
under two years later, on February 10, 2017, Adams filed the
instant product liability action against Zimmer.
2
II. PENNSYLVANIA’S DISCOVERY RULE1
As the Majority correctly notes, Pennsylvania law
proscribes a two-year statute of limitations on the claims before
us. See 42 Pa. Cons. Stat. § 5524(2). Although the two-year
period typically begins to run once an injured party suffers an
injury, see Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005), the
discovery rule provides a limited exception, tolling the statute
of limitations in certain cases involving latent injury or an
inapparent causal connection, see Wilson v. El-Daief, 964 A.2d
354, 361 (Pa. 2009).
But, even in such cases, Pennsylvania’s discovery rule
only tolls the statute of limitations until the injured party has
“actual or constructive knowledge of at least some form [(1)]
of significant harm and [(2)] of a factual cause linked to
another’s conduct, without the necessity of notice of the full
extent of the injury, the fact of actual negligence, or precise
cause.” Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa.
2011) (quoting Wilson, 964 A.2d at 364); see Debiec v. Cabot
Corp., 352 F.3d 117, 132 (3d Cir. 2003) (noting that an
“unrebutted suspicion” of an injury caused by another is
sufficient to trigger the statute of limitations in Pennsylvania).
The injured party also need not know “the precise medical
cause of her injury,” that “her physician was negligent,” or that
1
Since this case arises under diversity jurisdiction, we apply
Pennsylvania substantive law. Under Erie R. Co. v. Tompkins,
304 U.S. 64, 78 (1938), our task is thus to predict how the
Supreme Court of Pennsylvania would rule if it were deciding
this case. See Norfolk S. Ry. Co. v. Basell USA Inc., 512 F.3d
86, 91–92 (3d Cir. 2008).
3
“she has a cause of action” for the limitations period to begin.
Wilson, 964 A.2d at 364 n.10 (citations omitted).
Importantly, Pennsylvania intentionally crafted its
discovery rule to be narrow, placing a heavy burden on the
injured party invoking the rule. See id. at 364 (reviewing the
two major “approaches to determining accrual for limitations
purposes” in other jurisdictions and formulating its own
discovery rule to reflect the “narrower” one); see also Gleason,
15 A.3d at 484 (“Pennsylvania’s formulation of the discovery
rule reflects a narrow approach ‘to determining accrual for
limitations purposes’ and places a greater burden upon
Pennsylvania plaintiffs vis-á-vis the discovery rule than most
other jurisdictions.” (citing Wilson, 964 A.2d at 364)).
The injured party thus bears the burden of proof.
Wilson, 964 A.2d at 362. To toll the statute of limitations, the
injured party must demonstrate that, even through the exercise
of reasonable diligence, she was unable to determine that she
suffered an injury that was causally linked to the conduct of
another. See Cochran v. GAF Corp., 666 A.2d 245, 250 (Pa.
1995). Reasonable diligence requires the injured party to
exhibit “those qualities of attention, knowledge, intelligence[,]
and judgment which society requires of its members for the
protection of their own interest and the interest of others.”
Fine, 870 A.2d at 858 (quoting Crouse v. Cyclops Indus., 745
A.2d 606, 611 (Pa. 2000)).
Indeed, determining when the injured party knew or
should have known that she was injured by another party’s
conduct is a fact-intensive inquiry ordinarily for a jury to
decide. Wilson, 964 A.2d at 362. But the Supreme Court of
Pennsylvania has importantly noted that “courts may resolve
the matter at the summary judgment stage where reasonable
4
minds could not differ on the subject.” Id. (citing Fine, 870
A.2d at 858–59, and Cochran, 666 A.2d at 248).
III. THE MAJORITY’S MISSTEPS
Since Adams filed this lawsuit on February 10, 2017,
her claims are only timely if they accrued on or after February
10, 2015. In my view, the District Court correctly determined
that Adams’s claims accrued as a matter of law by January 30,
2015—when Dr. Ververeli informed Adams she was
experiencing metallosis from the Zimmer Device.2 Today, in
holding that factual issues bar summary judgment, the Majority
errs in three chief respects: (A) it overlooks or undervalues
undisputed material facts, (B) it misapplies the appropriate
legal standard, and (C) it relies on inapposite cases. I address
each error in turn.
A. Oversight of Undisputed Material Facts
The Majority erroneously concludes that reasonable
minds could disagree as to when the statute of limitations
began chiefly by overlooking material facts. Most damningly,
Adams admitted in her deposition that she knew by January 30,
2015 that her injury was causally linked to the Zimmer Device.
When asked about her state of mind on that date when Dr.
Ververeli recommended that the Zimmer Device be replaced,
Adams responded: “It just seemed that something was wrong.
[The Zimmer Device] had to come out. . . . It was a problem.”
App. 167. Inherent to her concession that she knew then that
2
Indeed, this certainly more than meets the “unrebutted
suspicion” standard our jurisprudence reflects. Debiec, 352
F.3d at 132.
5
there was a problem with the Zimmer Device that required its
removal is the notion that she connected her injury to Zimmer’s
conduct. That is all the second element of Pennsylvania’s
narrow discovery rule demands. See Gleason, 15 A.3d at 484
(requiring only knowledge of “some form . . . of a factual cause
linked to another’s conduct, without necessity of notice of the
. . . precise cause” (citation omitted)). By her own words, then,
Adams confirmed that she satisfied this element, thereby
beginning the statute of limitations, on January 30, 2015. On
its own, this concession is game, set, and match.
How, then, does the Majority conclude that reasonable
minds could disagree about when the statute of limitations
began to run? First, the Majority attempts to undermine the
dispositive nature of Adams’s concession by chopping it up
and unreasonably focusing on a mere portion of it in isolation.
See Maj. Op. 13 & n.5 (curiously omitting any mention of
Adams’s testimony that she knew on January 30, 2015 that the
Zimmer Device itself was a problem).
Then, and more broadly, the Majority harps at length on
what are ultimately immaterial facts. For example, the
Majority asserts that Adams’s testimony that she would have
objected had Dr. Ververeli proposed to replace the Zimmer
Device with another Zimmer product, see App. 167, does not
definitively mean she knew that the Zimmer Device caused her
injury. See Maj. Op. 13–14. But that is beside the point. In
light of Adams’s concession from moments prior to that
testimony, it does not matter whether or why she wanted to
replace the Zimmer Device with another manufacturer’s
product. Indeed, by the time Adams made this comment, she
had already admitted that on January 30, 2015 she knew there
was a problem with the Zimmer Device that was causing her
pain and thus required its removal. That conceded knowledge
6
is more than sufficient for her claims to have accrued on that
date. Reasonable minds could not disagree.
The Majority also dwells over whether Dr. Ververeli
clearly explained to Adams that his final diagnosis of
metallosis indicated some connection between her injury and
the Zimmer Device. See id. at 15 (stating that knowledge of
medical terminology “is not sufficient to impute constructive
knowledge” (citation omitted)). But this is both immaterial,
considering Adams’s concession, and incorrect, since Dr.
Ververeli indeed informed Adams that his metallosis diagnosis
implicated the Zimmer Device as the cause of her right hip
pain. During his deposition, Dr. Ververeli defined “metallosis”
as being “metal wear that then causes a reaction to the
surrounding tissues.” App. 218. He further clarified that, by
January 30, 2015, he had not only informed Adams about the
metallosis diagnosis, but also explained that this meant she was
suffering from “adverse local tissue reaction from wear and
fretting to the [Zimmer Device],” which would necessitate
“revision [surgery] and chang[ing the Zimmer Device to a
prosthesis with a] ceramic head” to “correct the problem.” Id.
at 256–57.3 By January 30, 2015, then, Adams had actual or
3
Adams’s deposition testimony creates no doubt as to Dr.
Ververeli’s testimony. When asked whether Dr. Ververeli
notified her on January 30, 2015 that she was experiencing
metallosis, for example, Adams responded that she “[did not]
remember.” Id. at 166. Lack of memory, however, does not
establish a genuine dispute at this summary judgment stage.
Cf. Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 333 (3d
Cir. 2005). In any event, Adams’s inability to recall some
things does not undermine her damning concession discussed
previously.
7
constructive knowledge that her right hip pain was a reaction
to—and thus being caused, at least in part, by—the presence of
the Zimmer Device, thereby triggering the statute of
limitations.
Further, whether Adams’s prior diagnostic history was
“unclear” or “difficult,” as the Majority characterizes it, e.g.,
Maj. Op. 4 (citation omitted), is of no moment. Why? That is
because, by January 30, 2015, Dr. Ververeli had meticulously
eliminated all other potential diagnoses through various tests,
scans, and procedures and given Adams a single, unequivocal
diagnosis of metallosis. See App. 258. By that point, not only
was Dr. Ververeli’s diagnosis clear, but it was also correct, as
the findings during the surgery further supported.
Finally, that the revision surgery uncovered even more
corrosion from the Zimmer Device than initially anticipated is
also of no significance because the surgery still only
corroborated Dr. Ververeli’s preoperative diagnosis that
Adams’s pain was originating from a reaction to the metal in
the Zimmer Device. Indeed, as discussed more fully later,
Pennsylvania law explicitly instructs us not to consider in our
analysis the extent of Adams’s injury, which undoubtedly
corresponds to the extent of the metal wear uncovered in her
surgery. See Gleason, 15 A.3d at 484. In sum, then, Adams’s
claims accrued by January 30, 2015, by which point even she
concedes that she knew that her injury was causally linked to
Zimmer’s conduct. All reasonable minds properly viewing all
of the undisputed, material facts would have to agree.
B. Misapplication of Legal Standard
In applying the relevant legal standard, the Majority
inappropriately heightens the bar for when the statute of
8
limitations is triggered under Pennsylvania’s discovery rule. In
doing so, it primarily violates two central principles outlined
by the Supreme Court of Pennsylvania: for claims to accrue
under the discovery rule, an injured party (1) need only know
about some form of significant harm, not the full extent of her
injury; and (2) need only know about a causal link between her
injury and another’s conduct, not misconduct.
1. Some Form of Significant Harm, Not Full Extent of Injury
Much of the Majority’s position rests on its claim that
Dr. Ververeli did not fully appreciate the Zimmer Device’s
deterioration until he was in the midst of Adams’s surgery. But
the Majority’s attempt to characterize Dr. Ververeli’s
preoperative diagnosis and postoperative knowledge as being
“fundamentally” different, Maj. Op. 12, cannot save the day.
That is because the surgery simply verified Dr.
Ververeli’s prior diagnosis. If anything, during the surgery,
Dr. Ververeli only discovered corrosion of the Zimmer Device,
and resulting adverse reactions in Adams’s nearby muscle
tissue, beyond that which he was already expecting and had
parlayed to Adams. See App. 235 (Dr. Ververeli’s stating that
his surgery revealed “abundant . . . reaction” to the extensive
corrosion of the Zimmer Device in Adams’s nearby “soft
tissue”). That, however, is of no moment in our analysis
because the Supreme Court of Pennsylvania instructs us to only
consider whether an injured party has notice of “at least some
form of significant harm,” not “the full extent of the injury.”
Gleason, 15 A.3d at 484 (quoting Wilson, 964 A.2d at 364).
Here, Adams had such notice before the surgery given Dr.
Ververeli’s correct preoperative diagnosis.
9
Relatedly, to the extent the Majority asserts that Dr.
Ververeli’s preoperative diagnosis was somehow incorrect due
to the extensive corrosion he uncovered during Adams’s
surgery, that, too, is irrelevant. That is because Pennsylvania’s
discovery rule only requires that an injured party know of
“some form of . . . factual cause link[ing her injury] to
another’s conduct,” not “the precise medical cause of her
injury.” Wilson, 964 A.2d at 364 & n.10 (citations omitted).
At core, whether Dr. Ververeli made new discoveries while
conducting Adams’s surgery, his preoperative diagnosis of
metallosis—metal wear that causes a reaction to the
surrounding tissues—still correctly put Adams on notice that
her injury was causally connected to the Zimmer Device—the
only metal in her right hip. That is all Adams needed to know
to satisfy the discovery rule’s second element. 4
Perhaps unintentionally, even the Majority admits that
the crux of Dr. Ververeli’s new findings during the surgery was
merely that the Zimmer Device was corroding even more than
previously imagined. See Maj. Op. 12 (stating that Dr.
Ververeli “began the operation . . . expect[ing that the socket
of the Zimmer Device] had worn down . . . but [also]
discovered the [Zimmer Device] itself was corroding”). In
fact, Adams also concedes this. See Appellant’s Br. 32 (stating
4
The Majority’s obsession with the “debris” Dr. Ververeli
found during the revision surgery is likewise misplaced
because Dr. Ververeli has clarified that “fretting and metal
wear debris . . . are very similar,” as they are both “types of
corrosion,” which he already expected before the surgery.
App. 218. By focusing on this, then, the Majority is simply on
an intellectual—but ultimately irrelevant—frolic.
10
that, during the surgery, Dr. Ververeli saw “a lot more [tissue]
reaction” than he expected (citation omitted)).
Dr. Ververeli’s own testimony crystallizes this point.
During his deposition, Dr. Ververeli confirmed that, “[p]rior to
conducting th[e] revision surgery,” his “definitive diagnosis”
was that Adams was “suffering from an adverse local tissue
reaction to the [Zimmer Device],” which he had previously
defined as metallosis. App. 238. When also asked whether,
“after [he] performed th[e] revision procedure . . . [he] was able
to formulate [the] opinion as to whether . . . Adams was
suffering from an adverse local tissue reaction,” he answered
in the affirmative. Id. In other words, the surgery just
confirmed what Dr. Ververeli predicted, and expressed to
Adams, before the surgery.
In sum, then, the undisputed material facts before us
demonstrate that Dr. Ververeli’s preoperative diagnosis
remained unchanged after Adams’s surgery. The only new
intraoperative discovery was the extent to which the Zimmer
Device corroded and Adams’s nearby muscle tissue had thus
adversely reacted. Hence, by hanging its hat on developments
that merely go to “the full extent of [Adams’s] injury,” the
Majority flouts Pennsylvania law. Gleason, 15 A.3d at 484
(quoting Wilson, 964 A.2d at 364).
2. Causal Link Between Injury and Another’s Conduct, Not
Misconduct
The Majority also errs in that it inappropriately focuses
on whether Adams knew that the Zimmer Device was flawed
in some respect. Most strikingly, the Majority’s own words
indicate that its analysis turns on whether Adams, through Dr.
Ververeli, “realize[d] a problem with the [Zimmer Device] was
11
injuring” her. Maj. Op. 13. But that is not what Pennsylvania’s
discovery rule demands for claims to accrue. Instead, the
discovery rule hinges on whether the injured party has
knowledge of a causal link between her injury and “another
party’s conduct,” not misconduct—i.e., negligence. Gleason,
15 A.3d at 484 (quoting Wilson, 964 A.2d at 364). Put
differently, the question is not whether Adams was on notice
of a problem with the Zimmer Device—i.e., a design defect—
but rather whether she was on notice of her problem—her right
hip pain—relating to the Zimmer Device. Here, she was.
Even the Majority concedes this articulation of the legal
standard. See Maj. Op. 11 (“For the statute of limitations to
start, [Adams] ‘need not know that [the] defendant’s conduct
is injurious.’” (second alteration in original) (citation
omitted)); see also, e.g., Wilson, 964 A.2d at 362 (“[T]he fact
that a plaintiff is not aware that the defendant’s conduct is
wrongful, injurious[,] or legally actionable is irrelevant to the
discovery rule analysis[.]” (citing Burton–Lister v. Siegel,
Sivitz and Lebed Assoc., 798 A.2d 231, 237 (Pa. Super. 2002)).
But the Majority nonetheless corrupts the standard in its
application.
In particular, the Majority attempts to use the reasonable
diligence requirement as a sword that somehow pierces
Pennsylvania’s binding and timeworn articulation of the
discovery rule. As the Majority apparently sees it, that “a
factfinder could reasonably determine that Adams had
exercised reasonable diligence . . . strongly counsels against
determining notice as a matter of law.” Maj. Op. 11. The
Majority reaches this erroneous conclusion because, in
explaining the rationale behind the reasonable diligence
requirement, one case once mentioned that the rule that a
plaintiff need not know that the defendant’s conduct was
12
wrongful “has limited relevance in scenarios in which the
plaintiff has exercised diligence but remains unaware of [the
injury and causation] factors.” Maj. Op. 11 (citation omitted).
But this reasonable diligence discussion is a red herring
here. By its plain terms, the language the Majority cites only
contemplates a plaintiff’s diligence possibly alleviating
application of the discovery rule’s causation element where,
despite her diligence, she remains unaware of the causal link
between her injury and the defendant’s conduct. Adams,
however, had such knowledge here, evidenced chiefly by her
admission that she knew by January 30, 2015 that the Zimmer
Device “was a problem” and thus “had to come out” of her
right hip. App. 167. Thus, that Adams may have investigated
her claim with reasonable diligence does not “strongly
counsel[] against determining notice as a matter of law,” as the
Majority erroneously concludes. Maj. Op. 11. Instead,
whether Adams was reasonably diligent has no bearing on this
particular analysis because, by the time of her surgery, she had
satisfied both elements of Pennsylvania’s discovery rule, thus
triggering the statute of limitations.
C. Reliance on Inapposite Cases
Finally, the Majority erroneously relies on cases
inapplicable here. In asserting that this case must go to a jury,
the Majority gloms onto an array of cases also sent to juries—
but none of which are analogous to ours. That is because those
cases involved (1) multiple or uncertain causes or (2) incorrect
diagnoses. By contrast, Dr. Ververeli here had given Adams a
single, correct diagnosis for her injury by January 30, 2015.
13
1. Multiple or Uncertain Causes
The Majority supports its proclamation that “diagnostic
uncertainty usually creates a jury question” by turning to a
handful of cases, including Fine, Wilson, Gleason, and Carlino
v. Ethicon, Inc., 208 A.3d 92 (Pa. Super. Ct. 2019). Maj. Op.
10. But each of those cases concerned plaintiffs who were
given multiple or uncertain causes for their injuries by their
medical providers. See Fine, 870 A.2d at 861; Wilson, 964
A.2d at 365; Gleason, 15 A.3d at 487; Carlino, 208 A.3d at
106. Although the Majority properly notes that Adams
previously had a “difficult diagnostic history,” Maj. Op. 14
(internal quotation marks and citation omitted), by the time of
Adams’s January 30, 2015 office visit, Dr. Ververeli had
thoroughly eliminated all of the other potential causes for her
injury and given her a single, unequivocal diagnosis of
metallosis, see App. 258 (Dr. Ververeli’s affirming that on
“January 30, 2015” he “confirmed that [Adams] was suffering
from metallosis”). As a result, Fine, Wilson, Gleason, and
Carlino are all inapposite.
2. Incorrect Diagnoses
Lastly, the Majority’s reliance on Nicolaou v. Martin,
195 A.3d 880 (Pa. 2018), is misplaced for at least two reasons.
First, and most notably, unlike the many incorrect diagnoses
the plaintiff in Nicolaou had previously received, id. at 895,
Dr. Ververeli’s final preoperative diagnosis of metallosis was
correct. Second, prior to receiving the positive test result that
verified her malady, the Nicolaou plaintiff had only received a
“probable”—not final—diagnosis from her medical provider.
14
Id. at 884.5 Here, in contrast, Dr. Ververeli “confirmed” to
Adams on January 30, 2015 “that she was suffering from
metallosis.” App. 258. The correct, final nature of Dr.
Ververeli’s diagnosis critically distinguishes it from the
Nicolaou medical provider’s “probable” diagnosis. Nicolaou,
195 A.3d at 884. These two features render Nicolaou
inapplicable to our case.
IV. CONCLUSION
While our legal system aims to give all their day in
court, a plaintiff must comply with the rules. Here, any
sympathies for her properly put aside, Adams did not. The
undisputed material facts indicate that her claims are time-
barred by Pennsylvania’s applicable statute of limitations.
Even drawing all inferences in Adams’s favor, no reasonable
mind could conclude otherwise. I thus dissent.
5
That correct diagnosis only became final when the plaintiff
received the positive test result. Importantly, the Supreme
Court of Pennsylvania never questioned that, even under the
discovery rule, the Nicolaou plaintiff’s claims would have
accrued at the latest when she received the correct, final
diagnosis of her disease.
15