Zimmer NexGen MDL Update

Judge Pallmeyer, the Illinois federal judge overseeing Zimmer NexGen knee MDL, has ordered that all bellwether trials must be completed before the end of 2018 and directed the parties to take steps toward mediation. There have been just two jury trials on the plaintiffs’ claims, both of which ended in victory for Zimmer. Judge Pallmeyer granted Zimmer's motion for summary judgment in another case last October. The Plaintiffs have argued for a consolidated trial involving several plaintiffs with similar claims.

The MDL, which began in 2011, is currently down to approximately 300 cases from a high of more than 1,500. Claims in the MDL are that the design problems of the devices caused failures leading to revision surgeries. Judge Pallmeyer recently ruled on several of Zimmer’s motions seeking to bar evidence, require more expert reports, and grant the company summary judgment in several cases.

Zimmer filed motion for summary judgment in 94 cases that included expert reports that Zimmer claimed did not involve a review of the plaintiffs' X-rays. The reports, which were required under Judge Pallmeyer's 2016 Lone Pine Order, could not be reliable without that review, Zimmer said. But Judge Pallmeyer declined to grant the motion, saying the question of the experts’ reliability would have to be determined through individual summary judgment motions.

Judge Pallmeyer also stated that the plaintiffs’ request for remand was likely to be approved. Attorneys for the plaintiffs asked for the cases to be sent back to their home courts in May, but the Judge said in an order that month she would like to try a few more before she gave her approval.

Zimmer’s counsel has conducted a scorched-earth approach to litigation, even proposing that the Court issue a $100,000 fine on each case that was dismissed after selection for the next round of trials. Plaintiffs’ counsel obviously strenuously opposed any type of sanctions.