Zimmer NexGen MDL Will Go On...For Now

U.S. District Judge Rebecca Pallmeyer issued a brief minute order this week that she will not disband the multidistrict litigation accusing Zimmer of manufacturing shoddy knee implants before she can try another pair of bellwethers in her court. Judge Pallmeyer expects two more bellwether trials in the MDL before she will entertain a request to unwind the MDL and send around 300 remaining cases back to the courts where they were initially filed or where jurisdiction is proper.

It appears that the two bellwether trials will occur this year and that the remand request will be revisited in 2018. The MDL at one point had over 1,800 cases filed in it. The cases all involve variations of the Zimmer NexGen series of knee implants. Zimmer opposed the unwinding of the MDL. Two bellwether cases have previously been tried; both resulting in defense verdicts. One option going forward is to try multiple plaintiffs’ cases at one time, similar to the approach that was taken in the Pinnacle MDL.

Judge Pallmeyer simultaneously weighed in on another dispute involving the production of documents from a third-party medical consulting firm, ruling that Physicians Medical Review must “produce all medical records that were furnished to potentially declaring or testifying experts.” However, she ruled that deposition notices issued to PMR’s principals would not be enforced.

Zimmer Defendants Picks For Bellwhether Trial

The Zimmer NexGen Knee MDL seems to finally be making some headway. Just yesterday, the defendants filed with the Court their choices for bellwhether trials. Because of disagreements between the parties, the earlier choices were disregarded. The list of choices are below:

           

            Gloria Ebarb v. Zimmer, Inc., et al., Case No. 1:13-cv-02679

            Original District: Western District of Arkansas

            Plaintiff’s Counsel: Sean T. Keith – Keith, Miller, Butler, Schneider &

            Pawlik, PLLC; Randi Kassan – Sanders Viener Grossman, LLP

            Mark Stephen Dobrzynski & Laura Left Dobrzynski, by Trustee Richard M.

            Fogel v. Zimmer, Inc., et al., Case No. 1:11-cv-07847

            Original District: Northern District of Illinois

            Plaintiff’s Counsel: Don K. Ledgard – Capretz & Associates;

            Paul J. Fina – Fina & Hunter

            Richard Lawrence v. Zimmer, Inc., et al., Case No. 1:12-cv-05201

            Original District: District of Minnesota

            Plaintiff’s Counsel: Stacy K. Hauer and Timothy Becker – Johnson

            Becker, PLLC; Randi Kassan – Sanders Viener Grossman, LLP

These plaintiffs have until the end of the month to inform the Court if they will proceed to trial. It is not clear the exact type of implant, injuries, and other case specific information involved in the defendants’ choices. One would hope that they are representative of the remaining filed cases in the MDL in order to help the parties evaluate their respective positions.

Selections For Bellwether Cases Submitted in Zimmer NexGen MDL

 

Approximately 1,010 cases are pending in the Zimmer NexGen MDL 2272. People from all over the United States make up that large number, each alleging that defective components in Zimmer’s range of knee implants caused the systems to fail within a few years. This MDL was created in August 2011 and consolidated 28 filed cases. We are now getting closer, albeit still very far away, from the first bellwether trial. ‘Bellwether’ cases are intended to help all parties gauge the likely reaction of juries and are a great tool for both sides to evaluate their positions.

 

Judge Rebecca R. Pallmeyer, the presiding Judge in the NexGen MDL, ordered both sides to select cases for the bellwether hearings no later than June 20, 2013. To be eligible for early trial, a case must have been transferred to the MDL prior to January 25, 2013, and plaintiffs must have provided medically authorized ‘Fact Sheets’ by April 25, 2013.

 

Out of that group of potential cases, the court is expecting to select those slated to go to trial by February 2014. Between now and February 2014, both sides must take expert witness depositions. Judge Pallmeyer indicated that the first Zimmer NexGen knee lawsuit will be ready for trial by January 2015. However, this date could easily be pushed back as we have seen in the ASR MDL.

 

If you suspect that your knee implant is loose, it is important to visit your doctor. Your doctor will likely perform bone scans and X-rays tests to determine the viability of your implant. Pittman, Dutton & Hellums, P.C., is currently investigating claims for those people with Zimmer knee implants who have been told their knee must be revised or they have already been revised. Please contact Booth Samuels toll free at 1-866-515-8880 or by email at booths@pittmandutton.com for a free case evaluation.

 

 

 

 

 

 

 

Zimmer NexGen Knee MDL Update

A status conference was held this month in Federal Court in the Zimmer NexGen knee replacement MDL. Lawyers representing various plaintiffs who are pursuing an injury lawsuit over Zimmer NexGen knee replacements asked the court to resolve a disagreement over the proposed discovery plan and exchange of documents needed to prepare for trials.

In advance of the status conference on April 12, plaintiffs and defendants each simultaneously submitted information to the court on outstanding issues in the negotiation of a comprehensive discovery plan, which involves the exchange of information by each side in advance of any trial dates.

Following the last status conference, the parties were ordered to meet and come to an agreement regarding the exchange of documents and information and other discovery. Although the parties were able to agree on some points, they were unable to reach agreement on the pace of production and extent of case-specific discovery that will be permitted. Counsel for the plaintiffs argued that Zimmer is dragging its feet in reviewing and releasing documents for the discovery phase, while Zimmer maintains that the plaintiffs are making unrealistic demands on the company and are attempting to prevent case-specific discovery on lawsuits other than those selected for early trial dates.

According to a plaintiff brief submitted on April 5, Zimmer has produced about 540,000 pages of documents over the last 13 months, at a rate of about 135,000 pages per month. The plaintiffs point out that the company has only tackled four out of 100 initial requests and provided partial production of 10 additional requests. At the current rate of production, plaintiffs estimate that Zimmer will not finish producing the requested documents until sometime in 2014, which they argue is far too slow and would unnecessarily delay the start of any trials. Plaintiffs are calling for discovery to be completed by the end of 2012.

Counsel for Zimmer claim that they are producing pages at a prodigious rate, and counter that its reviewers are spending 2,200 hours per month on the effort to get the documents out. The company maintains that the December 2012 deadline requested by the plaintiffs is unrealistic and unnecessary. Zimmer also argued that they should be allowed to engage in case-specific discovery on lawsuits that may not be eligible for trial within the MDL bellwether process, proposing that the parties and Court determine whether and how to structure the bellwether trial process after they have learned key facts about a substantial number of plaintiffs’ claims.

Under the discovery plans proposed by both sides, it is anticipated that the first Zimmer NexGen knee replacement trial could start as early as September 15, 2013.

When the Zimmer NexGen litigation was consolidated in August 2011, there were 28 lawsuits filed in 13 seperate federal district courts throughout the United States. Since consolidation, at least 223 other cases filed in various federal district courts have been transferred to the MDL. The number of lawsuits is expected to continue to grow as more cases are filed. 

ZIMMER KNEE CASES CONSOLIDATED FOR MDL

The Judicial Panel on Multidistrict Litigation issued a transfer order August 8th for In Re: Zimmer Nexgen Knee Implant Products Liability Litigation MDL No. 2272. There were 28 cases filed so far and the Panel was notified of more than 45 additional related actions. Counsel for Plaintiffs argued for centralization in the Northern District of Illinois, the Eastern District of New York and the Central District of California.

Counsel for Zimmer argued against centralization because the actions before the Panel implicated eight products, six different design teams, six different sets of design history documents and eight different 510(k) applications. Zimmer’s attorneys argued that discovery would not overlap among those actions and that these cases should not be consolidated for MDL purposes. In the alternative, they argued for centralization in the Northern District of Indiana.

The Panel, however, did not agree with Zimmer’s lawyers and ordered all pending actions transferred to the Northern District of Illinois. The Panel was not persuaded by Zimmer’s arguments about the distinctiveness of the various femoral components and ruled that an MDL does not require a complete identity or even a majority of common factual or legal issues as a prerequisite for transfer.

The Panel assigned the MDL to the Honorable Rebecca R. Pallmeyer. Besides citing that Judge Pallmeyer is an experienced and highly-regarded jurist, the Panel concluded that the Northern District of Illinois is an appropriate venue because 10 of the 28 pending actions are in that district and the district is relatively close to Zimmer’s Indiana headquarters.

The MDL will consolidate actions alleging that Zimmer’s “high-flex” femoral components (i.e., the Cruciate Retaining (CR) and Legacy Posterior Stabilised (LPS) components and the “Gender Solutions” versions) and the MIS Tibial components are prone to premature loosening, causing pain and loss of movement leading to revision surgery.

If you suspect that your implant may have loosened, it is important to see your physician. Your doctor will likely perform bone scans and X-rays to determine the viability of your implant. Our firm is currently investigating claims for those people who have Zimmer knee implants and have been injured. If you would like a free case evaluation, please contact Booth Samuels toll free at 1-866-515-8880 or at booths@pittmandutton.com.