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Date: 09-22-2014

Case Style: Mark Mitchell v. Wright Medical Technology, Inc., Wright Medical Group, Inc.a nd Vytautas Ringus, M.D.

Case Number: CJ-2013-1557

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Robyn Price and Ryan Price

Defendant's Attorney: Hilton Walters for Ringus Vytautas, M.D.

Description: NOW COMES Plaintiff, Mark Mitchell, for his Petition against the Defendants Wright Medical Technology, Inc., Wright Medical Group Inc., and Vytautas Ringus, M.D., (hereinafter collectively called “Defendants”), and hereby alleges and states the following:
PARTIES AND SERVICE
1. Plaintiff, Mark Mitchell, is an individual whose domicile is in Custer County, Oklahoma.
2. Defendant, Wright Medical Technology, Inc., is a nonresident Delaware corporation, doing business as a registered corporation in the State of Oklahoma.
3. Defendant, Wright Medical Group, Inc., is a Delaware corporation, with its principal place of business in Arlington, Tennessee.
4. Defendant, Vytautas Ringus, MD, (hereafter “Dr. Ringus”) is an individual physician who is a resident of Oklahoma and practices medicine in Cleveland County, Oklahoma.
JURISDICTION AND VENUE
5. The subject matter in controversy is within the jurisdictional limits of this Court.
6. This Court has jurisdiction over Defendant Wright Medical Technology, Inc. and Defendant Wright Medical Group, Inc., because said Defendants purposefully availed itself of the privilege of conducting activities in the State of Oklahoma and established minimum contacts sufficient to confer jurisdiction over said Defendant, and the assumption of jurisdiction over Wright Medical Technology, Inc. and Defendant Wright Medical Group, Inc. will not offend traditional notions of fair play and substantial justice and is consistent with the constitutional requirements of due process.
7. Defendant, Wright Medical Technology, Inc., and Defendant, Wright Medical Group, Inc., had continuous and systematic contacts with the State of Oklahoma sufficient to establish general jurisdiction over said Defendant.
8. This Court has jurisdiction over the parties because all or a substantial part of the events or omissions giving rise to this lawsuit occurred in Cleveland County.
9. Venue in Cleveland County is proper as all or a substantial part of the events or omissions giving rise to this lawsuit occurred in this county.
FACTS
10. On or about December 30, 2011, Plaintiff underwent surgery to fuse a joint in his forefoot. Defendant, Dr. Ringus, M.D. performed the surgery and implanted a DARCO MPJ Fusion System, which included six metal screws and one metal plate (hereafter collectively referred to as “Wright Fusion System”) that was manufactured and sold by Defendants Wright. While using the Wright Fusion System for the purpose and in the manner in which it was intended and without warning, the Wright Fusion System failed, causing Plaintiff to sustain injuries and damages.
11. On or about May 10, 2012, Plaintiff underwent a second surgery on his right forefoot that was performed by Dr. Ringus. Shortly after the second surgery was completed, Dr. Ringus advised Plaintiff, for the first time, that some of the screws that had been implanted in the December 30, 2011 surgery had broken.
LIABILITY OF WRIGHT MEDICAL TECHNOLOGY, INC.
FIRST CAUSE OF ACTION
MANUFACTURING DEFECT - STRICT LIABILITY
12. Plaintiff hereby incorporates by reference and re-alleges each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein.
13. At all relevant times, Defendants Wright, were in the business of manufacturing and selling the Wright Fusion System to distributors and health care providers for use in patients, such as Plaintiff, needing joint fusions of the forefoot.
14. Defendants marketed and sold the Wright Fusion System to physicians based on its alleged capabilities to provide reliable strength while maintaining patient comfort. Specifically, the Wright Fusion System was marketed as designed and manufactured to hold a fusion plate in place without breaking.
15. The Wright Fusion System was defective and unreasonably dangerous at the time it was manufactured and sold by Defendants and/or at the time it left Defendants’ control in that it did not comply with Defendants’ design specifications.
16. Plaintiff received the Wright Fusion System without substantial change in the condition in which it was manufactured, and placed in the stream of commerce by Defendants.
17. Defendants failed to adequately test the Wright Fusion System to determine
whether it met its own design specifications. Defendants’ methods, facilities and controls used in manufacturing of said device did not implement any testing to determine whether the device met its own design specifications.
18. Plaintiff was a foreseeable user of the Wright Fusion System and used the Wright Fusion System in the manner for which it was intended.
19. Plaintiff sustained injuries due to the defective manufacture of the Wright Fusion System, including but not limited to physical injury, pain, suffering, loss of enjoyment of life and medical expenses.
SECOND CAUSE OF ACTION
DESIGN DEFECT - STRICT LIABILITY
20. Plaintiff hereby incorporates by reference and re-alleges each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein.
21. The Wright Fusion System was defective in its design rendering the product unsafe when it left Defendants’ control. The Wright Fusion System, as designed, failed to be reliably strong as marketed by Defendants. The foreseeable risks exceeded the benefits associated with the design and formulation of the Wright Fusion System and caused Plaintiff to suffer physical injury.
22. Defendants failed to inspect and test the Wright Fusion System prior to placing it into the stream of commerce to determine whether it met its design specifications.
23. Plaintiff sustained injuries due to the defective design of the Wright Fusion System, including but not limited to physical injury, pain, suffering, loss of enjoyment of life, and medical expenses.
THIRD CAUSE OF ACTION
FAILURE TO WARN - STRICT LIABILITY
24. Plaintiff hereby incorporates by reference and re-alleges each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein.
25. The Wright Fusion System was released into the stream of commerce by Defendants in a defective condition in that it lacked adequate warnings and/or instruction that sufficiently informed health care professionals and their patients of the risks associated with the Wright Fusion System, including but not limited to warnings pertaining to the propensity for premature failure (including, but not limited to the propensity for the medical screws to fail) and the cause of unexplained pain from any premature failure.
26. Defendants failed to perform adequate testing on the Wright Fusion System and knew, or should have known, that the Wright Fusion System was defective and created a high risk of bodily harm. Defendants failed to adequately warn or inform its consumers that the subject Wright Fusion System had not been subjected to the testing required by its own standards and specifications.
27. Defendants failed to provide timely warnings or instructions regarding the Wright Fusion System and its known defects. The Wright Fusion System manufactured by Defendants was defective due to inadequate post-market warnings or instructions. After Defendants knew, or should have known, of the risk of injury from the Wright Fusion System, it failed to provide adequate warnings to the medical community and patients, including Plaintiff, and continued to advertise the Wright Fusion System as safe and effective.
28. As a direct and proximate result of Defendants’ conduct, Plaintiff has sustained physical injury, pain, suffering, loss of enjoyment of life, and incurred medical expenses.
FOURTH CAUSE OF ACTION
NEGLIGENCE
29. Plaintiff hereby incorporates by reference and re-alleges each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein.
30. At all relevant times, Defendants had a duty to Plaintiff to provide a safe product, and to warn Plaintiff of the defective nature of the Wright Fusion System.
31. Defendants breached their duty to Plaintiff by failing to exercise reasonable care in the design, manufacture, testing, marketing, and distribution of the Wright Fusion System. Defendants knew, or should have known, that the Wright Fusion System had a propensity to fail and cause serious injury.
32. Defendants breached their duty to Plaintiff by failing to exercise ordinary care in the labeling of the Wright Fusion System and by failing to issue adequate warnings, including post-market warnings regarding the risk of serious injury associated with the breaking of its Wright Fusion System.
33. Defendants knew, or should have known, that it was foreseeable that Plaintiff would suffer injury as a result of Defendants’ failure to exercise ordinary care as set forth above.
34. Defendants breached their duty of reasonable care owed to Plaintiff by manufacturing, producing, and designing without thoroughly testing the device.
35. As a direct and proximate cause of Defendants’ negligence, Plaintiff has suffered physical injury, pain, suffering, loss of enjoyment of life, and incurred medical expenses.
FIFTH CAUSE OF ACTION
BREACH OF IMPLIED WARRANTY
36. Plaintiff hereby incorporates by reference and re-alleges each and every allegation
in the foregoing paragraphs with the same force and effect as if fully set forth herein.
37. Defendants’ impliedly warranted that the Wright Fusion System designed and manufactured by Defendants, which was promoted to Plaintiff and his physicians, was marketable and fit and safe for ordinary use.
38. Defendants’ further impliedly warranted that the Wright Fusion System manufactured and designed by Defendants was fit for the particular purpose for which it was intended and sold to Plaintiff and his physicians.
39. Contrary to these implied warranties, the Wright Fusion System was defective, unmarketable, and unfit for its ordinary use when sold, and unfit for the particular purpose for which it was sold.
40. As a direct and proximate result of Defendants’ wrongful conduct, Plaintiff has sustained physical injury, pain, suffering, loss of enjoyment of life, and incurred medical expenses.
SIXTH CAUSE OF ACTION
BREACH OF EXPRESS WARRANTY
41. Plaintiff hereby incorporates by reference and re-alleges each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein.
42. Defendants advertised, labeled, marketed, and promoted the Wright Fusion System, representing the quality to health care professionals, the FDA, Plaintiff, and the public in such a way as to induce its purchase or use whereby making an express warranty that the Wright Fusion System would conform to the representations as a safe and effective product that would be reliably strong.
43. Defendants expressly represented to Plaintiff and/or his physicians that the Wright
Fusion System was safe and fit for the purposes intended, that it was of marketable quality, and that the device had been adequately tested and fit for its intended use. Plaintiff and his physicians relied on the express warranties from the Defendants.
44. The Wright Fusion System did not conform to the representations made by Defendants and the device was not safe or effective for use or treatment of Plaintiff.
45. The failure of the Wright Fusion System to perform as guaranteed and represented by Defendants was a direct, proximate and substantial factor in bringing about Plaintiffs injuries.
46. The Wright Fusion System sold to Plaintiff and his physician failed and caused Plaintiff to suffer injuries, including extreme pain, revision surgery, diminished enjoyment in life, medical expenses, and other damages.
SEVENTH CAUSE OF ACTION
RES IPSA LOQUITER
47. Plaintiff hereby incorporates by reference and re-alleges each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein.
48. Defendant manufactured the Wright Medical Fusion and the same failed.
49. The failure resulted in an injury to Plaintiff that does not occur in the usual course of everyday conduct
50. The Defendant exclusively controlled the instrumentality that caused the injury; to wit, the manufacturing of the Wright Medical Fusion.
51. The circumstances surrounding the implantation of the Wright Medical Fusion are not likely to produce an injury unless Defendant failed to exercise due care to prevent its occurrence by proper manufacturing the Wright Medical Fusion.
52. As a direct and proximate result of Defendants’ wrongful conduct, Plaintiff has sustained physical injury, pain, suffering, loss of enjoyment of life, and incurred medical expenses.
LIABILITY OF DEFENDANT DR. RINGUS
53. Plaintiff hereby incorporates by reference and re-alleges each and every allegation in the foregoing paragraphs with the same force and effect as if fully set forth herein.
54. Defendant, Dr. Ringus, MD, provided medical care, advice and treatment to Mark Mitchell.
55. Defendant, Dr. Ringus, MD, violated the duty of care he owed to Plaintiff by failing to exercise that degree of care, skill, and diligence ordinarily possessed and used by other members of the medical profession in good standing under the same or similar circumstances. Plaintiff alleges Dr. Ringus, MD was negligent in the following respects and particulars among others:
(a) In failing to properly install/implant the Wright Fusion System necessary to the Plaintiffs welfare according to the standards set by the medical profession;
(b) By failing to properly prepare Plaintiff’s bone ends prior to the installation of the Wright Fusion system;
(c) By failing to recognize and/or acknowledge his recognition of the Plaintiffs symptoms that resulted from his treatment of the Plaintiff and
(d) By failing to employ the accepted surgical standard and procedure in performing the operation on Plaintiff;
(e) By failing to properly remove all or a portion of the Wright Fusion System after portions of the same had failed;
(f) By failing to inform or advise Plaintiff of the advantages of using the “cone and cup” procedure prior to the first surgical procedure.
56. Each and every, all and singular of the foregoing acts and omissions, on the part
of Defendants, taken separately and/or collectively, constitute a direct and proximate cause of the injuries and damages set forth below.
DAMAGES
57. As a direct and proximate result of the occurrence made the basis of this lawsuit, Plaintiff, Mark Mitchell was caused to suffer an additional surgery, increased pain, suffering and permanent injury, and has incurred the following damages:
A. Reasonable medical care and expenses in the past. Plaintiff incurred these expenses for the necessary care and treatment of the injuries resulting from the accident complained of herein and such charges are reasonable and were usual and customary charges for such services in Cleveland County, Oklahoma;
B. Reasonable and necessary medical care and expenses, which will in all reasonable probability be incurred in the future;
C. Physical pain and suffering in the past;
D. Physical pain and suffering in the future;
E. Physical impairment in the past;
F. Physical impairment, which, in all reasonable probability, will be suffered
in the future;
G. Loss of earnings in the past;
H. Loss of earning capacity, which will, in all probability, be incurred in the future;
I. Loss of Consortium in the past, including damages to the family relationship, loss of care, comfort, solace, companionship, protection, services, and/or physical relations;
J. Loss of Consortium in the future including damages to the family relationship, loss of care, comfort, solace, companionship, protection, services, and/or physical relations;
K. Loss of Household Services in the past;
L. Loss of Household Services in the future;
M. Disfigurement in the past;
N. Disfigurement in the future;
0. Mental anguish in the past; and
P. Mental anguish in the future.
WHEREFORE, PREMISES CONSIDERED, Plaintiff, Mark Mitchell, respectfully prays that the Defendant be cited to appear and answer herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiff against Defendant for damages in an amount within the jurisdictional limits of the Court; together with pre-judgment interest (from the date of injury through the date of judgment) at the maximum rate allowed by law; post-judgment interest at the legal rate, costs of court; and such other and further relief to which the Plaintiff may be entitled at law or in equity.

Outcome: Dismissed without prejudice to the right to refile.

Plaintiff's Experts:

Defendant's Experts:

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