A federal judge has allowed a knee implant maker, which is the
target of hundreds of lawsuits alleging defective implants, to subpoena records
to see if a doctor changed his opinion to help several plaintiffs skirt
designation as bellwether trials.
The ruling was delivered Oct. 28 by Judge Rebecca Pallmeyer in
U.S. District Court for Northern Illinois, regarding plaintiffs' motion to
quash subpoenas issued by Zimmer Inc., manufacturer of NewGen Flex knee
implants. Zimmer is based in Warsaw, Ind.
In the past several years, hundreds of lawsuits have been filed
around the country against Zimmer, in which plaintiffs alleged they received
defective knee implants. In 2011, the suits were centralized in Chicago federal
court, with suits divided into “Track One” cases, in which plaintiffs claimed
implants loosened, because of extensive knee flexing, and “Track Two” cases,
which covered suits claiming causes other than flexing.
Zimmer directed subpoenas to Physicians Medical Review, which is a
consulting firm that helps plaintiffs evaluate cases and recommends experts to
testify. PMR, which is based in Boca Raton, Fla., has worked with plaintiffs
suing Zimmer. The implant maker asked PMR to provide documents relating to
Track Two plaintiffs for whom Dr. Jonathan Courtney supplied a report.
Zimmer said it needed the materials to determine if several Track
Two cases were improperly transformed into Track One cases to avoid selection
as bellwether trials. In cases with many plaintiffs suing the same defendant
along similar lines, a small number of plaintiffs can be chosen as bellwethers
to see how the other suits might play out. In the Zimmer litigation, bellwether
trials have been chosen from Track One cases.
“Plaintiffs avoided selection as a bellwether trial pick by waiting
out the bellwether selection process in the safe confines of Track Two,” Zimmer
Plaintiffs countered that Zimmer's "subpoena is outside the
scope of this litigation, is overbroad and seeks information that is privileged
or otherwise protected," adding other remedies are available, such as
motions to exclude expert testimony.
"Zimmer has stripped mined several small forests in its
efforts to exclude Plaintiff's experts," the plaintiffs noted in their filings.
Plaintiffs went on to say Zimmer was engaging in a "fishing
expedition," hoping -- "absent any evidence -- it will uncover some
nefarious relationship between PMR and plaintiff's counsel."
Judge Pallmeyer ended up giving Zimmer most of what it wanted.
Pallmeyer said Zimmer was not entitled to communications between
plaintiffs' attorneys and their experts, but Zimmer could see medical records
and related materials that Courtney used to form his opinions.
Pallmeyer explained that because Dr. Courtney allegedly changed
his view of a “handful” of Track Two cases, now allegedly giving an opinion
that could designate them Track One, Zimmer never had the chance to choose them
as bellwethers. As a consequence, Pallmeyer concluded Zimmer can acquire
certain materials from PMR to delve into the issue.
The judge set a status hearing for Dec. 19.
The motion to quash the subpoenas was lodged by the plaintiffs’
steering committee, made up of the following law firms: Johnson//Becker, of St.
Paul, Minn.; Anapol Weiss, of Philadelphia, Penn.; Pogust, Braslow &
Millrood, of Conshohocken, Penn.; and Foote, Meyers, Mielke & Flowers, of
Chicago and west suburban St. Charles.
Zimmer is defended by the global firm of Faegre Baker Daniels and
by Milwaukee-based Peterson, Johnson & Murray. Both firms have offices in