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Marous v. Biomet, Inc.

United States District Court, N.D. Indiana, South Bend Division

March 1, 2017

BIOMET, INC., et al., Defendants. YOLANDA CHISOLM, Plaintiff,
BIOMET, INC., et al., Defendants. JOSEPH CECIL, Plaintiff,
BIOMET, INC., et al., Defendants. JERRY AND SUSAN BAUMAN, Plaintiffs,
BIOMET, INC., et al., Defendants. NINA GLASSER, Plaintiff,
BIOMET, INC., et al., Defendants. WILLIAM C. WHITEN, as Personal Representative of the Estate of VIRGINIA BAKER, Deceased, Plaintiff,
BIOMET, INC., et al., Defendants.


          Robert L. Miller, Jr. United States District Judge

         Each of these plaintiffs received Biomet M2a Magnum, M2a-38 or M2a Taper metal-on-metal hip implants, and sues Biomet for injuries stemming from alleged defects in the product. Biomet moves for summary judgment, arguing that because none of the plaintiffs preserved the explanted device, each should be sanctioned with dismissal. The court disagrees.

         I. Background

         Early in the multi-district litigation related to the Biomet M2a hip implants, I ordered “[a]ll parties [ ] to take reasonable steps to preserve documents and other records (including electronic documents) containing information potentially relevant to the subject matter of this litigation.” Pretrial Order #1 ¶ 13, Oct. 12, 2012 [3:12-md-2391, Doc. No. 3].

         On March 7, 2013, I issued an “Explant Preservation Order” requiring preservation of M2a devices removed from plaintiffs during revision surgeries, thus aiding in proving or disproving causation of injuries. The order imposes the following obligations:

• “A plaintiff shall make good faith efforts to ensure that non-party medical practitioners, hospitals, and vendors . . . preserve his or her Explanted M2a Devices . . . .” Explant Pres. Order § VI, Mar. 7, 2013 [3:12-md-2391, Doc. No. 279].
• “With respect to M2a Devices that have not yet been explanted or have been explanted but are not in either party's possession, counsel for a plaintiff may elect to obtain plaintiffs Explanted M2a Device from plaintiffs surgeon or the hospital where the surgery occurred and send it to a contract laboratory of plaintiffs choice or a designated storage facility. If plaintiffs counsel does not elect to obtain an Explanted M2a Device within 60 days of the revision surgery, Biomet will make arrangements for it to be sent to Malcolm Naylor of Biomet in Warsaw, Indiana.” Id. § III(A). Each party must notify the other if that party has the explanted device in its possession prior to the date of the order. Id. § III(B).
• Each party must handle the explanted device in accordance with a Retrieval Analysis Protocol described in the order or a procedure that's consistent with methods and practices accepted by those in the field of inspection and testing of orthopaedic devices. Id. § II.
• Each party in possession of the explanted device shall make the device available to the other party after inspection and testing. Id. § III(C).

         Before the start of the MDL, the FDA used its powers under Section 522 of the Federal Food, Drug, and Cosmetic Act to require Biomet to conduct a postmarket surveillance study. Biomet had to submit a plan to conduct surveillance that would identify “the modes and causes of failure based on analysis of [Biomet's] reasonably available explanted retrieved devices.”

         A. George Marous, 3:14cv768

         George Marous was implanted with a Biomet M2a-Magnum hip implant. He contacted a law firm in December 2012 about problems with the implant and spoke to a paralegal there, who referred him to his current counsel. In April 2013 Mr. Marous underwent revision surgery. Before the surgery he signed a form consenting to disposal “of any tissues, parts, or organs which may be removed.” In an affidavit, he says that he requested the explant components before going into surgery. He and his wife say in affidavits that she spoke to the surgeon after surgery about retrieving the explant, but the surgeon said the request couldn't be fulfilled because bone was attached. At his deposition, Mr. Marous says he didn't know he could ask the hospital to preserve the explant. Joe Richardson, Jr., an independent contractor for “Biomet Mid Ohio, ” a Biomet distributor, was present at the surgery. He says he was never instructed to retrieve the explanted device and didn't do anything to retrieve it.

         Mr. Marous hired his current counsel in May 2013. They represent that they made an effort to contact the hospital's Department of Pathology after the revision to retrieve the explanted device, but the department said it never received the device. Mr. Marous filed suit in this court in April 2014.

         B. Yolanda Chisolm, 3:14cv1647

         Ms. Chisolm was implanted with a Biomet M2a-38 hip implant. In March 2014, her doctor told her that she needed revision surgery, tested high for cobalt and chromium, and suffered bone loss. Ms. Chisolm says that at this time she was aware of lawsuits involving Biomet and metal-on-metal hip implants. According to interrogatories, she first contemplated hiring an attorney in February 2014, and she first contacted an attorney at the end of March 2014.

         She filed suit against Biomet in North Carolina state court in April 2014, before her revision surgery the following month. Before revision, she signed a form authorizing her “physician, other practitioners and the Hospital [to] examine any organs, tissues, other body parts or foreign bodies that are removed from [her] during the Surgery and [to] ke[ep], use[ ] and save[ ] [them] for scientific, educational or research purposes or dispose[ ] of [them] according to Hospital policies.” Eric Owens, a Biomet sales representative, was present at the revision surgery. Ms. Chisolm says she doesn't know what happened to the device after it was removed from her.

         After the revision surgery, Biomet removed the case to federal court, and it was then transferred to this court as part of this MDL docket.

         C. Joseph Cecil, 3:14cv1712

         Joseph Cecil was implanted with a Biomet M2a-Taper hip implant in 2005. In 2013 his doctor told him that he suffered from metallosis and needed revision surgery. Mr. Cecil says that at that time he wasn't aware of litigation and possible defects in metal-on-metal hip implants. Later that year, Mr. Cecil considered hiring an attorney. About two weeks before his revision surgery, he learned about problems with the DePuy and Stryker hip implants and went to a law firm. At that point, he says, he believed his injury was the result of his hip implant.

         At the request of Mr. Cecil's wife, he signed a “Release of Specimens or Other Items” form, in which he requested that the “Left Hip Implant (Socket)” not be destroyed after surgery, but be released into his possession. Mr. Cecil underwent revision surgery in December 2013 and the hip implant was removed. After the revision surgery, Mr. Cecil never heard whether the hospital actually preserved that portion of the device, and neither he nor his wife ever received it. Mr. Cecil didn't follow up to see that the device was preserved or delivered to him, and he said he only learned that the explanted component hadn't been preserved on the day before his deposition.

         He filed suit in federal court in Kentucky in April 2014 and the case was transferred to this court as part of this MDL docket.

         D. Jerry ...

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