2019

Zimmer Biomet Defends World's Most Successful Knee Replacement System, Winning Three Consecutive Bellwether Victories

North America - United States | North America | North America - Canada | United States - Illinois

Faegre Baker Daniels defended Zimmer Biomet in consolidated federal multidistrict litigation, Canadian litigation and companion state cases regarding product liability claims asserted against one of the world's most successful knee replacement systems, the NexGen Flex. FaegreBD served as national coordinating counsel and national trial counsel, with support from the firm’s company case, law, science and experts, and discovery teams.

Early in the NexGen Flex MDL, the presiding multidistrict court refused the plaintiffs' attempt to expand the MDL to additional products. The MDL court also issued a coordination order and imposed limits on product discovery. As the MDL progressed, successful efforts to exclude and limit testimony by plaintiffs’ expert witnesses played a central role in securing trial victories. Faegre Baker Daniels won two bellwethers trials and secured summary judgment in a third bellwether case. FaegreBD also secured a rare Lone Pine order in the litigation, which led to the dismissal of hundreds of cases.
 
First Bellwether Trial Victory in Plaintiff-Selected Case
Zimmer Biomet’s first MDL victory defending the NexGen Flex knee implants came after a nearly three-week trial in October 2015, when a federal jury in Chicago found that Zimmer’s design was not negligent, nor did the company fail to warn the surgeon performing the plaintiff’s double knee replacement. This is especially noteworthy because Batty v. Zimmer, Inc. et al. was a bellwether trial that the Plaintiffs Steering Committee chose as the first case to be tried.
 
Second Bellwether Victory Hinges on Exclusion of Expert Testimony
Zimmer Biomet continued to defend its NexGen Flex knee product with a major victory on October 21, 2016, in a second bellwether case, Theodore Joas et al. v. Zimmer Inc. et al. The presiding multidistrict litigation court in the Northern District of Illinois excluded the plaintiff’s medical causation expert under Daubert and granted summary judgment in favor of Zimmer on all counts. The plaintiffs’ complaint alleged a wide swath of claims including strict liability design defect, strict liability failure to warn, strict liability manufacturing defect, negligence, negligent misrepresentation, breach of express warranty, breach of implied warranty, unjust enrichment and fraudulent concealment.

FaegreBD achieved an additional victory in 2017 when the Seventh Circuit Court of Appeals affirmed the trial court’s summary judgment order in all respects.
 
Third Bellwether Trial Victory for Zimmer Biomet
Zimmer Biomet and FaegreBD continued successfully to defend the medical device manufacturer’s NexGen Flex knee product with a third bellwether victory on January 26, 2017, in Goldin v. Zimmer. After a three-week trial, the jury in the U.S. District Court in the Northern District of Illinois rejected the plaintiff's claim that Zimmer failed to warn of risks associated with use of the implant.
 
Shrinking the Litigation’s Scope and Inventory
During the litigation, a number of cases — including bellwether selections — were dismissed by the plaintiffs. Following those dismissals, FaegreBD helped secure multiple screening orders and a rare Lone Pine order in the MDL, which collectively resulted in an 80 percent reduction in the litigation’s inventory. The scope of the litigation was substantially reduced as a consequence of the Lone Pine order.
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