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.
