Parties Dispute the Plan for Discovery in Zimmer NexGen Knee Lawsuits

At a status conference today in federal court, lawyers representing various plaintiffs who are pursuing an injury lawsuit over Zimmer NexGen knee replacements are expected to ask the court to resolve a disagreement over the proposed discovery plan and exchange of documents needed to prepare for trials.

Last August, the U.S. Judicial Panel on Multidistrict Litigation consolidated all federal Zimmer NexGen knee lawsuits brought throughout the United States before Judge Rebecca R. Pallmeyer in the U.S. District Court for the Northern District of Illinois, as part of an MDL or multidistrict litigation.

The cases are consolidated for pretrial proceedings to avoid contradictory pretrial rulings, reduce duplicative discovery and help facilitate the efficient litigation of the cases.

As part of the coordinated process, discovery on common issues that impact all lawsuit are completed and a handful of individual cases are often prepared for early trial dates to help the parties gauge how juries are likely to respond to evidence and testimony that may be repeated throughout the litigation.

These early trial dates, known as bellwether trials, are often beneficial in helping the parties reach a possible settlement or other resolution for the litigation. If the cases are not settled during the MDL proceedings, the lawsuits may then be remanded back to the federal district court where they were originally filed for individual trial dates.

All of the complaints involve similar claims that individuals experienced problems with various Zimmer NexGen knee replacement components, which were allegedly caused by design defects or Zimmer’s failure to provide accurate information about the risk of failure.

In advance of a status conference scheduled for 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, known as discovery, which would ultimately lead to a trial of representative cases. 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.

Plaintiffs argue that Zimmer is dragging its feet in reviewing and releasing documents for the discovery phase, while Zimmer maintains that 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 this year.

Attorneys for Zimmer indicate that company is 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 is unrealistic and unnecessary.

Zimmer also argues 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 different federal district courts throughout the United States. Since then, at least 223 other cases filed in various federal district court have been transferred to the MDL and the number of lawsuits is expected to continue to grow as lawyers review additional cases for individuals who have experienced problems following a knee replacement where certain Zimmer NexGen components were used.