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Filing # 196515349 E-Filed 04/18/2024 03:45:47 PM
IN THE CIRCUIT COURT OF THE 8TH
JUDICIAL CIRCUIT IN AND FOR
ALACHUA COUNTY, FLORIDA
CASE NO.: 2024-CA-1319
JOSEPH MCCARTHY and
DIANE MCCARTHY, H/W,
Plaintiffs,
VS.
EXACTECH, INC.; EXACTECH, US, INC.;
WILLIAM “BILL” PETTY; BETTY PETTY: :>
DAVID PETTY; GARY MILLER; MILLER
FAMILY HOLDINGS, LLC; MILLER
FAMILY HOLDINGS, INC; and HILLMAN
SUPPLY COMPANY, INC.
Defendants.
/
SHORT FORM COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff(s) files this Short Form Complaint and Demand for Jury Trial against the
Defendants named below. Plaintiff(s) incorporates by reference the Consolidated Long Form
Complaint filed in Exactech Master Case, 2022 CA 002670 (“Long Form Complaint”).!
Plaintiff(s) further alleges as follows:
I. IDENTIFICATION OF PARTIES
A. PLAINTIFF(S)
1 Injured Plaintiff(s): Name of the individual implanted with and injured by an Exactech
Device.
Joseph McCarthy
(“Plaintiff”)
| Plaintiff may assert additional causes of action and/or name Defendants not otherwise set forth in the Long Form
Complaint. If additional causes of action are asserted and/or new Defendants named, the specific facts supporting any
such additional cause of action or the naming of such additional Defendants must be pled in a manner complying with
the Florida Rules of Civil Procedure. Additional pages may be attached to this Short Form Complaint, if necessary.
Any amendments to Plaintiff's first-filed Short Form Complaint are subject to all applicable law and Court Rules.
"2024 CA 001319" 196515349 Filed at Alachua County Clerk 04/18/2024 03:45:59 PM EDT
At the time of the filing of this Short Form Complaint, Plaintiff resides in the following
state:
Florida
Consortium Plaintiff(s): Name of the individual(s) that alleges damages for loss of
consortium:
Diane McCarthy
(“Consortium Plaintiff’)
Survival and/or Wrongful Death Claims:
a. Representative Plaintiff: Name of the individual filing this matter and their
representative capacity (i.e. administrator or executor of estate):
N/A
(“Representative Plaintiff”)
b. Name and state of residence of Decedent Plaintiff when he/or she died as a result
of an Exactech Device related injury:
N/A
Decedent Plaintiff died on the following date:
N/A
B. DEFENDANTS
5 Plaintiff(s) names the following Defendants in this action:
Exactech Defendants (Count I, II, III, 1V, V, VI, VII, VIII, IX, X, XI, XII, and XIII, pertain
to the Exactech Defendants.)
B5x x] Exactech, Inc.
& Exactech U.S., Inc.
Petty Defendants ( Counts IV, V, VI, IX, X, XI, XII, and XIII pertain to these Defendants)
B5x x] William “Bill” Petty
& Betty Petty
B5x x] David Petty
Miller Defendants ( Counts IV, V, VI, IX, X, XI, XII, and XIII pertain to these Defendants)
& Gary Miller
& Miller Family Holdings, LLC
x Miller Family Holdings, Inc.
Hillman Defendant (Counts I, II, 1V, XI, XII, and XIII, pertain to this Defendant.)
x Hillman Supply Company, Inc.
Other Defendant(s) (provide name and state(s) of citizenship for each new Defendant):
Il. JURISDICTION
6. Plaintiff(s) specifically incorporate by reference Paragraphs 19 through 21 of the Long Form
Complaint
iil. PLAINTIFF’S EXACTECH DEVICE
[Complete paragraphs 7-15 for one Exactech Device. If Plaintiff received more than one Exactech
Device, complete paragraphs 7-15 separately for each Device and attach additional pages to this
Short Form Complaint, if necessary.]
7. Plaintiff was implanted with the following Exactech Device:
Exactech Hip Device: Exactech Knee Devices
Oo Novation GXL ao Optetrak Classic
Oo AcuMatch GXL Optetrak Logic
Oo MCS GXL a Truliant
Oo Unspecified/Other o Unspecified/Other
Exactech Ankle Device
o Vantage
o Unspecified/Other
IMPORTANT NOTE: If you indicated “Unspecified/Other” above, you must state (1) all
actions you took to attempt to identify the model of the device you were implanted with; (2)
why you were unable to locate such information prior to the filing of your Short Form
Complaint; and (3) the reason this lawsuit was filed without first obtaining product
identification (e.g., expiring statute of limitations).
Note: if you indicated “Unspecified/Other” above, you should file an amended complaint
with model information within seventy-five (75) days of the filing of the Short Form
Complaint to avoid the risk of dismissal with prejudice for lack of product identification.
Leg in which the Exactech Device was Implanted:
Oo Right
& Left
10. Date the Exactech Device was implanted:
April 6, 2017
11 State in which the Exactech Device was implanted:
New York
12 State in which the Plaintiff resided at the time the Exactech Device was implanted:
New York
13. Date(s) the Exactech Device was surgically removed/revised:?
N/A to date
14. State(s) in which the Exactech Device was surgically removed/revised:>
N/A to date
15 State(s) in which the Plaintiff resided at the time the Exactech Device was surgically
removed/revised:*
N/A to date
16. Plaintiff was implanted with the following Exactech Device:
Exactech Hip Devices Exactech Knee Devices
Oo Novation GXL o Optetrak Classic
Oo AcuMatch GXL X Optetrak Logic
Oo MCS GXL a Truliant
Oo Unspecified/Other o Unspecified/Other
Exactech Ankle Device
? If more than one removal/revision surgery, list the dates of each removal/revision surgery.
3 If more than one removal/revision surgery, list each state in chronological order in which the Exactech Device was
surgically removed/revised.
* Tf more than one removal/revision surgery, list each state in chronological order where the Plaintiff resided at the
time of the removal/revision surgeries.
4
a Vantage
a Unspecified/Other
17. IMPORTANT NOTE: If you indicated “Unspecified/Other” above, you must state (1) all
actions you took to attempt to identify the model of the device you were implanted with; (2)
why you were unable to locate such information prior to the filing of your Short Form
Complaint; and (3) the reason this lawsuit was filed without first obtaining product
identification (e.g., expiring statute of limitations).
Note: if you indicated “Unspecified/Other” above, you should file an amended complaint
with model information within seventy-five (75) days of the filing of the Short Form
Complaint to avoid the risk of dismissal with prejudice for lack of product identification.
18 Leg in which the Exactech Device was Implanted:
B5x x] Right
Oo Left
19. Date the Exactech Device was implanted:
February 22, 2018
20. State in which the Exactech Device was implanted:
Connecticut
21 State in which the Plaintiff resided at the time the Exactech Device was implanted:
New York
22. Date(s) the Exactech Device was surgically removed/revised:5
September 22, 2022
23. State(s) in which the Exactech Device was surgically removed/revised:®
5 If more than one removal/revision surgery, list the dates of each removal/revision surgery.
6 If more than one removal/revision surgery, list each state in chronological order in which the Exactech Device was
surgically removed/revised.
Connecticut
24. State(s) in which the Plaintiff resided at the time the Exactech Device was surgically
removed/revised:’
New York
25. Plaintiff was implanted with the following Exactech Device:
Exactech Hip Devices Exactech Knee Devices
Oo Novation GXL o Optetrak Classic
Oo AcuMatch GXL X Optetrak Logic
Oo MCS GXL a Truliant
Oo Unspecified/Other o Unspecified/Other
Exactech Ankle Device
o Vantage
a Unspecified/Other
26. IMPORTANT NOTE: If you indicated “Unspecified/Other” above, you must state (1) all
actions you took to attempt to identify the model of the device you were implanted with; (2)
why you were unable to locate such information prior to the filing of your Short Form
Complaint; and (3) the reason this lawsuit was filed without first obtaining product
identification (e.g., expiring statute of limitations).
Note: if you indicated “Unspecified/Other” above, you should file an amended complaint
with model information within seventy-five (75) days of the filing of the Short Form
Complaint to avoid the risk of dismissal with prejudice for lack of product identification.
27. Leg in which the Exactech Device was Implanted:
& Right
Oo Left
7 Tf more than one removal/revision surgery, list each state in chronological order where the Plaintiff resided at the
time of the removal/revision surgeries.
6
28 Date the Exactech Device was implanted:
September 22, 2022
29. State in which the Exactech Device was implanted:
Connecticut
30. State in which the Plaintiff resided at the time the Exactech Device was implanted:
New York
31 Date(s) the Exactech Device was surgically removed/revised:*
N/A to date
32 State(s) in which the Exactech Device was surgically removed/revised:?
N/A to date
33 State(s) in which the Plaintiff resided at the time the Exactech Device was surgically
removed/revised:!°
N/A to date
Iv. CAUSES OF ACTION
34. Counts in the Long Form Complaint incorporated herein and asserted by Plaintiff(s):
& Count I - Strict Product Liability - Manufacturing Defect (Exactech & Hillman)
& Count II — Strict Product Liability - Design Defect (Exactech & Hillman)
B5x x] Count III- Strict Product Liability — Failure to Warn (Exactech)
B5x x] Count IV — Negligence (All Defendants)
B5x x] Count V — Breach of Post Market Duty to Warn (Exactech, Petty and Miller)
B5x x] Count VI — Negligent Misrepresentation (Exactech, Petty and Miller)
B5x x] Count VII - Breach of Express Warranty (Exactech)
5x x]
Count VIII — Breach of Implied Warranty (Exactech)
8 If more than one removal/revision surgery, list the dates of each removal/revision surgery.
° If more than one removal/revision surgery, list each state in chronological order in which the Exactech Device was
surgically removed/revised.
10 If more than one removal/revision surgery, list each state in chronological order where the Plaintiff resided at the
time of the removal/revision surgeries.
Count IX — Information Negligently Supplied for the Guidance of Others
(Exactech, Petty and Miller)
Count X — Consumer Protection Act (Exactech, Petty and Miller)
(Identify applicable State Law(s)):
Count XI — Wrongful Death (All Defendants)
Count XII - Survival Action (All Defendants)
x Count XIII — Loss of Consortium (All Defendants)
Other Count(s) (please identify the claim, the applicable Defendant(s), and state the
factual and legal bases for other claims Plaintiff alleges that were not set forth in
the Master Complaint):
WHEREFORE, Plaintiff(s) prays for relief and judgment against named Defendants and
all such further relief that this Court deems equitable and just as set forth in the Long Form
Complaint and any additional relief to which Plaintiff(s) may be entitled.
JURY DEMAND
Plaintiff(s) hereby demands a trial by jury as to all claims in this action.
Date: April 18, 2024 By: /s/ C. Calvin Warriner, III, Esq.
C. Calvin Warriner, III, Esquire
Florida Bar ID No. 374131
SEARCY DENNEY, et al
2139 Palm Beach Lakes Blvd.
West Palm Beach, FL 33409
Telephone: (561) 686-6300
Facsimile: (561) 383-9442
E-mail: CCW@searcylaw.com
/s/ Shayna Slater
Shayna Slater, Esq.
Florida PHV No. 1045676
ANAPOL WEISS
180 N. 18th Street, Suite 1600
Philadelphia, PA 19103
Telephone: (215) 790-4583
Facsimile: (215) 875-7736
E-mail: sslater@anapolweiss.com
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Filing # 196515349 E-Filed 04/18/2024 03:45:47 PM IN THE CIRCUIT COURT OF THE 8TH JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY, FLORIDA CASE NO.: 2024-CA-1319 JOSEPH MCCARTHY and DIANE MCCARTHY, H/W, Plaintiffs, VS. EXACTECH, INC.; EXACTECH, US, INC.; WILLIAM “BILL” PETTY; BETTY PETTY: :> DAVID PETTY; GARY MILLER; MILLER FAMILY HOLDINGS, LLC; MILLER FAMILY HOLDINGS, INC; and HILLMAN SUPPLY COMPANY, INC. Defendants. / SHORT FORM COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff(s) files this Short Form Complaint and Demand for Jury Trial against the Defendants named below. Plaintiff(s) incorporates by reference the Consolidated Long Form Complaint filed in Exactech Master Case, 2022 CA 002670 (“Long Form Complaint”).! Plaintiff(s) further alleges as follows: I. IDENTIFICATION OF PARTIES A. PLAINTIFF(S) 1 Injured Plaintiff(s): Name of the individual implanted with and injured by an Exactech Device. Joseph McCarthy (“Plaintiff”) | Plaintiff may assert additional causes of action and/or name Defendants not otherwise set forth in the Long Form Complaint. If additional causes of action are asserted and/or new Defendants named, the specific facts supporting any such additional cause of action or the naming of such additional Defendants must be pled in a manner complying with the Florida Rules of Civil Procedure. Additional pages may be attached to this Short Form Complaint, if necessary. Any amendments to Plaintiff's first-filed Short Form Complaint are subject to all applicable law and Court Rules. "2024 CA 001319" 196515349 Filed at Alachua County Clerk 04/18/2024 03:45:59 PM EDT At the time of the filing of this Short Form Complaint, Plaintiff resides in the following state: Florida Consortium Plaintiff(s): Name of the individual(s) that alleges damages for loss of consortium: Diane McCarthy (“Consortium Plaintiff’) Survival and/or Wrongful Death Claims: a. Representative Plaintiff: Name of the individual filing this matter and their representative capacity (i.e. administrator or executor of estate): N/A (“Representative Plaintiff”) b. Name and state of residence of Decedent Plaintiff when he/or she died as a result of an Exactech Device related injury: N/A Decedent Plaintiff died on the following date: N/A B. DEFENDANTS 5 Plaintiff(s) names the following Defendants in this action: Exactech Defendants (Count I, II, III, 1V, V, VI, VII, VIII, IX, X, XI, XII, and XIII, pertain to the Exactech Defendants.) B5x x] Exactech, Inc. & Exactech U.S., Inc. Petty Defendants ( Counts IV, V, VI, IX, X, XI, XII, and XIII pertain to these Defendants) B5x x] William “Bill” Petty & Betty Petty B5x x] David Petty Miller Defendants ( Counts IV, V, VI, IX, X, XI, XII, and XIII pertain to these Defendants) & Gary Miller & Miller Family Holdings, LLC x Miller Family Holdings, Inc. Hillman Defendant (Counts I, II, 1V, XI, XII, and XIII, pertain to this Defendant.) x Hillman Supply Company, Inc. Other Defendant(s) (provide name and state(s) of citizenship for each new Defendant): Il. JURISDICTION 6. Plaintiff(s) specifically incorporate by reference Paragraphs 19 through 21 of the Long Form Complaint iil. PLAINTIFF’S EXACTECH DEVICE [Complete paragraphs 7-15 for one Exactech Device. If Plaintiff received more than one Exactech Device, complete paragraphs 7-15 separately for each Device and attach additional pages to this Short Form Complaint, if necessary.] 7. Plaintiff was implanted with the following Exactech Device: Exactech Hip Device: Exactech Knee Devices Oo Novation GXL ao Optetrak Classic Oo AcuMatch GXL Optetrak Logic Oo MCS GXL a Truliant Oo Unspecified/Other o Unspecified/Other Exactech Ankle Device o Vantage o Unspecified/Other IMPORTANT NOTE: If you indicated “Unspecified/Other” above, you must state (1) all actions you took to attempt to identify the model of the device you were implanted with; (2) why you were unable to locate such information prior to the filing of your Short Form Complaint; and (3) the reason this lawsuit was filed without first obtaining product identification (e.g., expiring statute of limitations). Note: if you indicated “Unspecified/Other” above, you should file an amended complaint with model information within seventy-five (75) days of the filing of the Short Form Complaint to avoid the risk of dismissal with prejudice for lack of product identification. Leg in which the Exactech Device was Implanted: Oo Right & Left 10. Date the Exactech Device was implanted: April 6, 2017 11 State in which the Exactech Device was implanted: New York 12 State in which the Plaintiff resided at the time the Exactech Device was implanted: New York 13. Date(s) the Exactech Device was surgically removed/revised:? N/A to date 14. State(s) in which the Exactech Device was surgically removed/revised:> N/A to date 15 State(s) in which the Plaintiff resided at the time the Exactech Device was surgically removed/revised:* N/A to date 16. Plaintiff was implanted with the following Exactech Device: Exactech Hip Devices Exactech Knee Devices Oo Novation GXL o Optetrak Classic Oo AcuMatch GXL X Optetrak Logic Oo MCS GXL a Truliant Oo Unspecified/Other o Unspecified/Other Exactech Ankle Device ? If more than one removal/revision surgery, list the dates of each removal/revision surgery. 3 If more than one removal/revision surgery, list each state in chronological order in which the Exactech Device was surgically removed/revised. * Tf more than one removal/revision surgery, list each state in chronological order where the Plaintiff resided at the time of the removal/revision surgeries. 4 a Vantage a Unspecified/Other 17. IMPORTANT NOTE: If you indicated “Unspecified/Other” above, you must state (1) all actions you took to attempt to identify the model of the device you were implanted with; (2) why you were unable to locate such information prior to the filing of your Short Form Complaint; and (3) the reason this lawsuit was filed without first obtaining product identification (e.g., expiring statute of limitations). Note: if you indicated “Unspecified/Other” above, you should file an amended complaint with model information within seventy-five (75) days of the filing of the Short Form Complaint to avoid the risk of dismissal with prejudice for lack of product identification. 18 Leg in which the Exactech Device was Implanted: B5x x] Right Oo Left 19. Date the Exactech Device was implanted: February 22, 2018 20. State in which the Exactech Device was implanted: Connecticut 21 State in which the Plaintiff resided at the time the Exactech Device was implanted: New York 22. Date(s) the Exactech Device was surgically removed/revised:5 September 22, 2022 23. State(s) in which the Exactech Device was surgically removed/revised:® 5 If more than one removal/revision surgery, list the dates of each removal/revision surgery. 6 If more than one removal/revision surgery, list each state in chronological order in which the Exactech Device was surgically removed/revised. Connecticut 24. State(s) in which the Plaintiff resided at the time the Exactech Device was surgically removed/revised:’ New York 25. Plaintiff was implanted with the following Exactech Device: Exactech Hip Devices Exactech Knee Devices Oo Novation GXL o Optetrak Classic Oo AcuMatch GXL X Optetrak Logic Oo MCS GXL a Truliant Oo Unspecified/Other o Unspecified/Other Exactech Ankle Device o Vantage a Unspecified/Other 26. IMPORTANT NOTE: If you indicated “Unspecified/Other” above, you must state (1) all actions you took to attempt to identify the model of the device you were implanted with; (2) why you were unable to locate such information prior to the filing of your Short Form Complaint; and (3) the reason this lawsuit was filed without first obtaining product identification (e.g., expiring statute of limitations). Note: if you indicated “Unspecified/Other” above, you should file an amended complaint with model information within seventy-five (75) days of the filing of the Short Form Complaint to avoid the risk of dismissal with prejudice for lack of product identification. 27. Leg in which the Exactech Device was Implanted: & Right Oo Left 7 Tf more than one removal/revision surgery, list each state in chronological order where the Plaintiff resided at the time of the removal/revision surgeries. 6 28 Date the Exactech Device was implanted: September 22, 2022 29. State in which the Exactech Device was implanted: Connecticut 30. State in which the Plaintiff resided at the time the Exactech Device was implanted: New York 31 Date(s) the Exactech Device was surgically removed/revised:* N/A to date 32 State(s) in which the Exactech Device was surgically removed/revised:? N/A to date 33 State(s) in which the Plaintiff resided at the time the Exactech Device was surgically removed/revised:!° N/A to date Iv. CAUSES OF ACTION 34. Counts in the Long Form Complaint incorporated herein and asserted by Plaintiff(s): & Count I - Strict Product Liability - Manufacturing Defect (Exactech & Hillman) & Count II — Strict Product Liability - Design Defect (Exactech & Hillman) B5x x] Count III- Strict Product Liability — Failure to Warn (Exactech) B5x x] Count IV — Negligence (All Defendants) B5x x] Count V — Breach of Post Market Duty to Warn (Exactech, Petty and Miller) B5x x] Count VI — Negligent Misrepresentation (Exactech, Petty and Miller) B5x x] Count VII - Breach of Express Warranty (Exactech) 5x x] Count VIII — Breach of Implied Warranty (Exactech) 8 If more than one removal/revision surgery, list the dates of each removal/revision surgery. ° If more than one removal/revision surgery, list each state in chronological order in which the Exactech Device was surgically removed/revised. 10 If more than one removal/revision surgery, list each state in chronological order where the Plaintiff resided at the time of the removal/revision surgeries. Count IX — Information Negligently Supplied for the Guidance of Others (Exactech, Petty and Miller) Count X — Consumer Protection Act (Exactech, Petty and Miller) (Identify applicable State Law(s)): Count XI — Wrongful Death (All Defendants) Count XII - Survival Action (All Defendants) x Count XIII — Loss of Consortium (All Defendants) Other Count(s) (please identify the claim, the applicable Defendant(s), and state the factual and legal bases for other claims Plaintiff alleges that were not set forth in the Master Complaint): WHEREFORE, Plaintiff(s) prays for relief and judgment against named Defendants and all such further relief that this Court deems equitable and just as set forth in the Long Form Complaint and any additional relief to which Plaintiff(s) may be entitled. JURY DEMAND Plaintiff(s) hereby demands a trial by jury as to all claims in this action. Date: April 18, 2024 By: /s/ C. Calvin Warriner, III, Esq. C. Calvin Warriner, III, Esquire Florida Bar ID No. 374131 SEARCY DENNEY, et al 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 Telephone: (561) 686-6300 Facsimile: (561) 383-9442 E-mail: CCW@searcylaw.com /s/ Shayna Slater Shayna Slater, Esq. Florida PHV No. 1045676 ANAPOL WEISS 180 N. 18th Street, Suite 1600 Philadelphia, PA 19103 Telephone: (215) 790-4583 Facsimile: (215) 875-7736 E-mail: sslater@anapolweiss.com