Posted on February 6, 2013
by Cal Warriner
An MDL (multidistrict litigation)
was established for the prosecution of individual personal injury lawsuits
against Biomet in the fall of 2012. The Judicial Panel
on Multidistrict Litigation (JPML) heard attorney arguments on
September 20, 2012, at a hearing in New York City. The plaintiffs requested
consolidation of the pending lawsuits involving Biomet’s M2a Magnum metal-on-metal hip implants in
federal court in New York, Texas, or California, where lawsuits had already
been filed by individual plaintiffs. Biomet resisted the establishment of an
MDL, but suggested that it be based in New York or New Jersey if the JPML felt
that MDL coordination of the individual lawsuits was necessary. The Judicial Panel
rejected all of the suggested forums and established MDL No. 2391 before Judge Robert L.
Miller, Jr., United States District Court Judge in the Northern District of
Indiana. Judge Miller has been a member of the Judicial Panel on
Multi-District Litigation since 2003. He was appointed as a federal judge in
1985, and has served as Chief Judge in the Northern District of Indiana since
2003.
As of January 14, 2013, there were 132 individual lawsuits pending in
the MDL. Given the large number of adverse event reports filed by patients who
suffered harm as a result of being implanted with the defective Biomet M2a
Magnum metal-on-metal hip implants, it is anticipated that hundreds of
additional lawsuits will be filed by
injured plaintiffs in the coming months.
Judge Miller held his most recent
monthly status conference on February 4, 2013, in South Bend. The judge is
currently considering a number of issues in the litigation, including guidelines on the preservation of explanted hip
implants and the forms to be utilized for discovery responses. The Court
granted the plaintiffs’ request for another week to prepare a Fact Sheet form
that was more comprehensive than the one submitted (but less onerous than the
form proposed by the Defendants), in light of the judge’s comments that he
would prefer to have a more comprehensive form. The parties are also working on
reaching agreements with regard to electronic discovery and predictive coding,
the first steps that need to be completed in order for the large-scale
production of Biomet’s documents to begin.
At the recent status conference,
the court also discussed scheduling issues, including a “science day” to educate the Court on the
scientific issues pertinent to the Biomet
metal-on-metal hip implant litigation. Those presentations are
expected to occur in May of 2013. If discovery proceeds as intended, it is
likely that the Court would be in a position to begin the selection of individual
cases for case-specific discovery and bellwether trial preparation as early as January of 2014.
We anticipate that a number of orders will be entered this month to help
streamline the litigation process. The next status conference in the Biomet MDL is scheduled for
March 18, 2013.
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