ELKINS – An orthopedic company is requesting the federal court dismiss a case against it in which a man claims his artificial hip cracked while he was at home.

Depuy Orthopedics, Depuy Inc. and Johnson and Johnson contend the court should dismiss the case Dayton J. Mallow and his wife, Sandra L. Mallow, filed against them because Dayton Mallow assumed the risk of any such injuries when he allowed the artificial hip to be inserted in his body.

In his complaint originally filed Sept. 15 in Randolph Circuit Court, Dayton J. Mallow says a Depuy Engage modular femoral revision stem was implanted into his body to replace his existing artificial hip on Nov. 15, 2006.

"On or about 17 September 2007, while at his home in Randolph County, West Virginia, Plaintiff Dayton J. Mallow felt sharp pain and heard a popping noise coming from his hip," the suit states.

After reporting to West Virginia University Hospital's Department of Orthopedics, Dayton J. Mallow discovered his artificial hip had fractured, forcing him to undergo another surgery on Sept. 18, 2008, to replace the broken hip, according to the complaint.

"Plaintiff Dayton J. Mallow experienced great pain, incurred significant expenses for medical treatment, and was forced to use crutches and other ambulatory aids for eight weeks following the 18 September 2007 surgery," the complaint says.

Dayton J. Mallow's wife, Sandra L. Mallow, claims she has lost her husband's love, affection, consortium and ability to perform household services.

While the defendants deny the fact that Dayton J. Mallow's artificial hip failed, they do admit that the distal stem of the prosthesis fractured.

They contend the case should be dismissed, in part because they had no control over Dayton J. Mallow's injuries.

"Any unforeseeable and unreasonable risk to the physical well being of Plaintiffs was a risk that none of the Defendants created, and therefore could neither reduce nor eliminate," the suit states. "Defendants allege that any and all injuries suffered by Plaintiffs were the direct and proximate result of sensitivities, medical conditions, reaction and/or idiosyncrasies peculiar to the Plaintiff, Dayton J. Mallow, that were unknown, unknowable, or not reasonably foreseeable to Defendants and were not, as alleged, a direct and proximate result of any wrongful conduct on their part, the fact of which is expressly denied herein."

If the product was defective, then it was not the fault of the defendants, they claim.

In their complaint, the Mallows are seeking compensatory and punitive damages, plus costs, attorney's fees, interest and other relief to which they may be entitled.

The defendants are asking the court to dismiss the lawsuit against them and to award them all associated costs.

The defendants removed the case to federal court because they are residents of a different state than the Mallows and because the Mallows are seeking more than $75,000.

The Mallows will be represented by Philip S. Isner of Curnutte Law Office in Elkins.

The defendants will be represented by C. James Zeszutek and Randal M. Whitlatch of Dinsmore and Shohl in Pittsburgh.

U.S. District Court case number: 2:09-cv-124

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