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. 

Forum Non Conveniens Ruling in Alabama

The result in Ex parte Southeast Ala. Timber Harvesting, LLC, No. 1110349 (Ala. Apr. 20, 2012), is not surprising given prior opinions.  Webster, likely a Lee County resident, was injured in Lee County when timber came off a truck owned by Southeast.  Because Southeast’s principal place of business was in Chambers County, Webster filed her complaint in Chambers County.

The Supreme Court held that the Chambers County court erred in not granting Southeast’s Sec. 6-3-21.1-based motion to transfer.  The “interest of justice” prong dictated a transfer.  This result solidifies the “Alabama” rule that, when there is an accident, such as a highway accident, a defendant is entitled to have the matter tried in the county where the accident occurred.  It does not matter that the plaintiff chose to sue the defendants in their “home” county. 

Alabama Supreme Court Opinion on Rule 56(c)(2) and the 10 Day Rule

In Tucker v. Scrushy, the plaintiffs filed a garnishment against Richard M. Scrushy Charitable Foundation. Among other things, the plaintiffs alleged that the Foundation was Scrushy’s alter ego. The Foundation filed an answer and the plaintiffs contested the answer. 

In a separate action, the plaintiffs sued the Foundation, asserting claims under the Alabama Uniform Fraudulent Transfer Act (“AUFTA”); no “alter ego” claim was made.  The Foundation moved for a partial summary judgment, asserting that the AUFTA claims were not timely brought.  Following being allowed to conduct additional discovery, the plaintiffs conceded that the AUFTA claims were not timely brought. 

On November 19, 2010, the plaintiffs filed a pleading (1) acknowledging that the AUFTA claims were timed barred and (2) requesting a trial as to the garnishment contest.  On December 1, 2010, on the eve of a hearing on the partial summary judgment motion, the Foundation requested a summary judgment in the garnishment contest.  After conducting a hearing, in which the plaintiffs objected to hearing any summary judgment motion in the garnishment contest, the trial court granted the Foundation a summary judgment in both matters. 

On appeal, the Supreme Court reversed, holding that the plaintiffs were deprived the required 10-day notice and had not waived the right to such notice.  The Supreme Court declared that the plaintiffs were prejudiced because they were deprived the ability to file a response within two days of the hearing.  The Supreme Court rejected the Foundation’s argument that there was no prejudice because, between the hearing and the entry of an order, the plaintiffs could have filed an opposition. The Supreme Court noted that the procedural rules do not provide for the filing of an opposition after a hearing.

Alabama Supreme Court Ruling on Supersedeas Bonds

In Ex parte Mohabbat, No. 1110503, a monetary judgment of $630,000 was entered for the Singhs and against the Mohabbats.  After the Mohabbats’ new-trial motion was denied by operation of law, the Mohabbats appealed.  In the trial court, the Mohabbats filed a motion to allow them to post a supersedeas bond of $100,000, as opposed to $787,500, the amount required by Ala. R. App. P. 8(a)(1), alleging that they did not have the resources to execute a $787,500 bond. The trial court granted the motion. 

In the Alabama Supreme Court, the Singhs filed a mandamus petition.  The Alabama Supreme Court granted the mandamus writ, holding that any motion seeking relief from the requirements of Rule 8(a)(1) must be first filed with the appellate court and that, on its own, a trial court lacks the authority to reduce the amount of the supersedeas bond. 

Thus, an appellant must move the Supreme Court to allow a reduced bond in order to stay execution on the judgment.  The Supreme Court may instruct the trial court to conduct a hearing to determine what the amount of the bond sought be but the initial request must be made to the Supreme Court.