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By: Austin Kirk | Published: November 15th, 2013
In advance of a case management conference scheduled for Monday, parties involved in the federal litigation over problems with Biomet M2A metal-on-metal hip replacements have submitted competing proposals regarding the bellwether trial process.
There are currently more than 725 Biomet M2A hip lawsuits pending in the federal court system, which have been centralized for pretrial proceedings as part of an MDL, or Multidistrict Litigation.
The cases are consolidated before U.S. District Judge Robert L. Miller, Jr. in the Northern District of Indiana to reduce duplicative discovery, avoid conflicting rulings from different judges and to serve the convenience of the parties, the witnesses and the courts.
All of the lawsuits involve similar allegations that plaintiffs suffered complications caused by problems with the design of the Biomet M2A hip replacement system, which is a metal-on-metal design that has been associated with reports of early failure, often resulting in the need for surgery within a few years after receiving the implant.
As part of the coordinated pretrial proceedings, the court is planning to schedule a series of early trial dates, known as “bellwether” cases. These trials are designed to help the parties gauge how juries may respond to certain evidence and testimony that may be repeated throughout a number of claims.
Biomet Hip Replacement Trials
A case management conference is scheduled in the litigation for Monday, November 18 at 10:00 a.m., where the parties are expected to review the status of the litigation and the process for preparing a small group of cases for early trial dates.
In recent weeks, plaintiffs and defendants have each submitted proposals regarding the selection of cases and timing for the first trials. Both sides agree that a pool of eight cases should be selected, focusing on individuals who have had to undergo revision surgery for a Biomet M2A hip.
According to the proposal (PDF) submitted by plaintiffs on October 25, generic discovery would continue over the next six months, with the parties each selecting four cases on July 4, 2014, including two cases involving the M2a Magnum implant and 2 cases involving an M2a-38 implant. Case specific discovery would then be conducted on those claims throughout the remainder of 2014, followed by expert witness discovery throughout 2015.
Plaintiffs proposal calls for the first bellwether case to be ready for trial in March 2016, at which time it would be transferred back to the U.S. District Court where it was originally filed to go before a jury.
The proposal (PDF) submitted by attorneys for Biomet calls for a much more aggressive trial schedule, with the first cases being ready to go before a jury by late 2014.
Biomet proposes that the parties exchange their selections of four bellwether cases each by January 24, 2014, suggesting that each side’s choices should consist of three M2A Magnum cases and one M2A-38 case, since 75% of the cases in the MDL involve the Biomet Magnum hip. The manufacturer indicates that core discovery can be completed by April 2014, with expert discovery completed by August 2014, suggesting that the first bellwether trial could be ready ten months after the selection of the cases.
Another major contrast between the proposals submitted by plaintiffs and defendants involves the appropriate venue for the bellwether cases to be tried. Biomet has indicated that it is willing to waive any objections as to the proper venue of the cases, allowing all bellwether cases to be tried in the Northern District of Indiana. However, plaintiffs have indicated they are not willing to waive the right to contest venue, which would mean that each bellwether case will be remanded back to the original venue where it was filed when it is ready for trial.
The preparations and outcomes of the early bellwether trials are designed to help the parties weigh the relative strengths and weaknesses of their cases. The process is designed to facilitate a possible agreement to settle Biomet hip cases without the need to take each case to trial.
Biomet Magnum Metal Hip Problems
The Biomet M2a Hip is a metal-on-metal artificial hip replacement system. Plaintiffs allege that the design causes excessive amounts of cobalt and chromium to corrode and wear from the surfaces of the acetabular cup, femoral head and taper sleeve as the metal parts rub against each other. This excessive wear makes the Biomet M2a Hip system prone to fail, according to the complaints.
Plaintiffs claim that a Biomet M2A hip recall should have been issued years ago, indicating that Biomet received hundreds of reports of failures not long after the implant was launched. As early as August 2004, Biomet received a complaint involving a patient who required additional surgery to remove and replace a Biomet M2a Magnum Hip that had become loose only three years after it was implanted. However, according to allegations raised in plaintiffs’ complaints, Biomet closed its investigation into the matter.
Most of the cases have come since a 2010 recall for the DePuy ASR metal-on-metal hip, after the manufacturer acknowledged that problems with the design caused the implant to have an early failure rate. It has recently been reported that Johnson & Johnson may agree to pay $4 billion to settle DePuy ASR lawsuits, resolving more than 7,500 cases.