United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge United States District Court
Miles sued Biomet for damages in connection with the alleged
failure of her hip implant. Biomet moved for summary
judgment, arguing that the applicable statutes of limitations
bars her claims based on (1) a proposed date on which all
plaintiffs were on constructive notice of potential claims
and (2) facts specific to the plaintiff. In response, Ms.
Miles moved to amend her complaint “to state with more
specificity the chronology of events”, delete her claim
under New York's General Business Law, and add a claim
under Florida's consumer protection statute. For the
following reasons, I grant Biomet's motion for summary
judgment and deny Ms. Miles's motion to amend.
Standard of Review
judgment is appropriate when the pleadings, discovery
materials, disclosures, and affidavits demonstrate no genuine
issue of material fact, such that the movant is entitled to
judgment as a matter of law. Protective Life Ins. Co. v.
Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011). I must
construe the evidence and all inferences that reasonably can
be drawn from the evidence in the light most favorable to Ms.
Miles, as the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). As the moving
party, Biomet bears the burden of informing me of the basis
for its motion, together with evidence demonstrating the
absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If Biomet
meets that burden, Ms. Miles can't rest upon the
allegations in the pleadings, but must “point to
evidence that can be put in admissible form at trial, and
that, if believed by the fact-finder, could support judgment
in [her] favor.” Marr v. Bank of Am., N, A.,
662 F.3d 963, 966 (7th Cir. 2011); see also Hastings Mut.
Ins. Co. v. LaFollette, No. 1:07-cv-1085, 2009 WL
348769, at *2 (S.D. Ind. Feb. 6, 2009) (“It is not the
duty of the court to scour the record in search of evidence
to defeat a motion for summary judgment; rather, the
nonmoving party bears the responsibility of identifying the
evidence upon which he relies.”); Hammel v. Eau
Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)
(summary judgment is “not a dress rehearsal or practice
run; it is the put up or shut up moment in a lawsuit, when a
party must show what evidence it has that would convince a
trier of fact to accept its version of events”).
Proposed Bar Date
Biomet asks me to establish a bar date applicable to all
plaintiffs. Biomet argues that enough information was
publicly available to put a reasonable plaintiff on notice by
February 10, 2011 that his injury might be connected to
Biomet's M2a Magnum metal-on-metal hip implant. As Biomet
sees it, if a plaintiff was injured on or before February 10,
2011, the statute of limitations would begin to run then. If
a plaintiff was injured after February 10, 2011, the statute
of limitations would begin to run on the date of injury.
discovery rule postpones the accrual of a cause of action
until the plaintiff knew, or through exercise of reasonable
diligence should have known, that he was injured. See,
e.g., Fla. Stat. § 95.031(2)(b); 735 Ill. Comp.
Stat. 5/13-213(d); N.C. Gen. Stat. § 1-52(16); Wash.
Rev. Code § 7.72.060(3); Martin v. Arthur, 3
S.W.3d 684, 690 (Ark. 1999); In re Med. Review Panel of
Howard, 573 So.2d 472, 474 (La. 1991); Moreno v.
Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).
contends that this publicly available information put any
reasonable plaintiff on notice of a potential claim by the
proposed bar Dated: the device's Instructions for Use,
articles in medical journals, press reports, and the Food and
Drug Administration's websites. The Instructions for Use
for Biomet's metal-on-metal hip implants disclosed that
using the device could pose a risk of exposure to metal
debris, including osteolysis, metal hypersensitivity, and
elevated metal ion levels. Eight 2010 medical journal
articles raised concerns about the risks associated with
metal-on-metal hip implants, including an editorial in the
Journal of Arthroplasty, the official, peer-reviewed journal
of the Association of Hip and Knee Surgeons. See
Ross Crawford et al., Metal on Metal: Is it Worth the
Risk?, J. Arthroplasty, Sept. 2010, at 1.
argues that news reports from early 2010 reporting on the
risks of metal debris with metal-on-metal hip implants also
put plaintiffs on notice of potential claims. See,
e.g., Barry Meier, As Use of Devices Grows, Studies
Raise Concerns, N.Y. Times, Mar. 4, 2010. More news reports
followed DePuy's August 2010 recall of two ASR
metal-on-metal hip implants. See, e.g., Natasha
Singer, Hip Implants Are Recalled by J. & J.
Unit, N.Y. Times, Aug. 27, 2010.
Biomet contends that the FDA notified the public when it
launched two websites discussing potential health risks of
metal-on-metal hip implants by February 10, 2011. See
Concerns about Metal-on-Metal Hip Implant Systems, Food
& Drug Admin. (last updated Feb. 10, 2011),
HipImplants/ucm241604.htm; Information for Patients Who
Have Metal-on-Metal Hip Implants, Food & Drug Admin.
(last updated Feb. 10, 2011),
HipImplants/ucm241766.htm. These websites warned that
metal-on-metal hip implants might leave debris that could
damage bones and tissue surrounding the implant, and
encouraged people to contact their physicians if they
experienced any symptoms. Biomet argues that the combined
effect of the Instructions for Use, journal articles, press
reports, and FDA warnings put a reasonable person on notice
of the connection between Biomet's device and an injury
from exposure to metal and metal debris no later than
February 10, 2011.
district court decisions in MDL dockets inform Biomet's
analysis. In In re Avandia Marketing, Sales Practices and
Products Liability Litigation, Judge Rufe held that a
bar date was appropriate because the cumulative effect of
publicity about a prescription drug's relationship to
adverse cardiovascular events was sufficient, as a matter of
law, to put an individual who had been injured on notice that
Avandia could be to blame. No. 07-MD-01871, 2012 WL 3205620,
at *4 (E.D. Pa. Aug. 7, 2012). This publicity included:
1. a New England Journal of Medicine study finding that
Avandia increased the risk of heart problems by forty-three
2. a joint statement from the American College of Cardiology,
the American Diabetes Association, and the American Heart
Association expressing concern and advising patients to speak
to their physicians;
3. an FDA advisory committee conclusion that Avandia
increased heart risk;
4. FDA action requiring that a warning be added to
5. the drug manufacturer sending letters to healthcare
professionals on studies linking Avandia and heart health;
6. the drug manufacturer publishing a “Dear
Patient” letter about the risks of heart problems;
7. a wave of media attention following the above, including
lead stories on the ...