Zimmer Biomet successfully defended against claims that a tibial fracture fixation plate contained a design defect and that Zimmer had committed fraud by failing to advise surgeons of and report the alleged defect. After a July 2007 motorcycle accident caused plaintiff Don Gustafson an open, comminuted leg fracture, his leg was stabilized using the Zimmer Periarticular Distal Tibial Medial Locking Plate. In mid-2008, an identical device was implanted after Gustafson's first plate broke, and a year later, the second device also broke. Gustafson sought $7 million to $10 million in punitive damages, claiming that the failure of the Zimmer devices caused him to become disabled. A product liability litigation team from Faegre Baker Daniels defended Zimmer in the 10-day trial, which concluded with a favorable Texas state jury ruling on January 23, 2014.
Using testimony from the plaintiff's surgeon, the FaegreBD team successfully contended that the plaintiff's fracture failed to heal because of its severity, which put undue stress on the plates and eventually caused them to break from fatigue. More than 20,000 of the Zimmer tibial fracture fixation plates have been used in other patients since the product was cleared for use by the Food and Drug Administration (FDA) in 2005, with very few reported failures.
The plaintiff requested a retrial based on claims of undisclosed juror bias and jury discussions outside the jury room, as well as the court's finding that the jury verdict was against the great weight of the evidence. Zimmer filed a petition for writ of mandamus in the Texas Fifth Court of Appeals, and on November 21, 2014, the court threw out the retrial, holding that the judge abused his discretion by granting a new trial, that the plaintiff failed to carry his burden in presenting the issue of juror misconduct, and that the evidence supported the jury's verdict in favor of Zimmer.