United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge, United States District Court
cause is before the court on plaintiff Randall Hix's
motion to enforce what he believes to be a settlement
agreement. Mr. Hix contends that the facts of his case
establish that he qualified for a base award of $200, 000
under the Master Settlement Agreement, that Biomet lacked
good cause to challenge the value of his claim, and that it
refused to negotiate in good faith during mediation. He asks
me to find that Biomet breached the Master Settlement
Agreement by challenging his eligibility for a base award,
enforce the terms of the agreement, and enter an order
requiring Biomet to withdraw all challenges to his claim for
a base award and pay him the sum to which he is entitled. For
the following reasons, his motion is denied.
received a Magnum hip implant on July 12, 2010, underwent
revision surgery to remove the device on October 31, 2012,
and filed his complaint on March 27, 2014, before the April
15 deadline set forth in paragraph 1 of the Settlement
Agreement. When Mr. Hix asked for an enhancement under
Paragraph 3(a) of the Master Settlement Agreement, Biomet
challenged the value of his claim and offered a reduced
amount ($25, 000) to settle. Mr. Hix rejected the offer and
the parties proceeded to mediation on April 17, 2015, but
couldn't resolve their differences.
challenged the value of Mr. Hix's claim and offered him a
lower amount to settle based on its belief that his injuries
resulted from a preexisting condition (a history of
degenerative arthritis of the left hip requiring screw
fixation for a slipped capital femoral epiphysis and
arthroscopy) documented in his medical records, the absence
of any “metal ion blood work results” to support
a diagnosis of metallosis, and contributing factors such as
obesity and a history of drug and alcohol addiction.
See [Doc. No. 31-7]. Mr. Hix disagreed with
Biomet's assessment, and obtained an affidavit from his
treating surgeon, Dr. Richard Blakey, shortly before
mediation, in an effort to bolster his claim. Dr. Blakey
attested that the revision surgery was “due to pain 
from metallosis, which was secondary to the Biomet M2a Magnum
hip implant, ” and that, in his opinion, Mr. Hix's
past history and treatment for degenerative arthritis of the
left hip and previous narcotics use and or alcohol abuse,
didn't play a role in the failure of Mr. Hix Biomet M2A
Magnum hip or the need for revision surgery. [Doc. No. 31-8].
Biomet found Dr. Blakey's opinion unpersuasive and the
parties were unable to reach an agreement as to the value of
Mr. Hix's claim at mediation.
claims he qualified for a base settlement award (if not the
enhancement), but Biomet refused to honor the terms of the
agreement and challenged his case in bad faith. Biomet says
the parties never reached a meeting of the minds on the
settlement value of Mr. Hix's case, so no agreement
exists between the parties for me to enforce.
2(d) of the Master Settlement Agreement tells a plaintiff to
first categorize his or her case based on the agreement's
guidelines. Next, Biomet informs the plaintiff of any
disagreement with that categorization. Then, if the parties
still disagree as to the value of the case, they proceed to
mediation. Paragraph 3 outlines two general types of
mediation cases: when plaintiffs believe good cause exists
that entitles them to enhanced compensation; and/or when
Biomet believes good cause exists to reduce the award.
Paragraph 3 also states that the parties agree to
“confer in good faith” during the mediation
process, and if they aren't able to reach an agreement at
mediation, the case will be remanded, when the court so
orders. [Doc. No. 1317-1].
co-lead counsel for the plaintiffs, Thomas Anapol, advised
the court in May 2015 that: “The fundamental
understanding between the parties when the deal was struck
was that if people come and seek enhancement in these cases,
all bets are off. . . . We . . . notified everybody in Group
1 and Group 2 that you need to be very mindful and careful in
seeking enhancements because Biomet was going to take a
closer look at the records in those instances, so everybody
should have had open eyes with respect to seeking enhancement
for that very reason.” [Doc. No. 2904 at p. 16]. Mr.
Winter told the court, “We were very clear when we
negotiated this that Biomet would say, “You get a base
award, and we won't discount obesity, smoking, or age.
But if you want more than the base award, we are going to
challenge that to take that into account, and, in addition,
we have a right to contest cases where we think it's
appropriate to contest. Pursuant to . . . the settlement, and
that's what we did.” Id. at p. 17-18. I
concluded in May 2015 that Biomet's practice wasn't
inconsistent with the settlement agreement and wasn't
done in bad faith. [Doc. No. 2909]. Mr. Hix hasn't
presented any evidence to the contrary.
Settlement Agreement explicitly allows the parties to
disagree about the categorization of a case and directs them
to mediation when such a disagreement occurs. The agreement
defines the good cause needed for Biomet to seek to reduce
the amount to be paid to a specific plaintiff as including
(but not being limited to) evidence of trauma, infection, or
other objective explanations for premature failure of the hip
system with the absence of evidence of a metal on metal
injury. In other cases, I have directed the parties to rely
on the mediator to determine whether “good cause”
exists for an enhancement or a deduction. I have offered a
limited definition of “good cause” under the
agreement - subjective rather than objective, and not limited
to the examples set out in ¶ 3(b). Likewise, I have been
reluctant to interfere with the parties' interpretation
of the settlement agreement in individual cases. It would be
inappropriate to shift gears at this point, and Mr. Hix has
offered no reason for me to do so. Consistency is one of the
purposes of the MDL process.
the Master Settlement Agreement doesn't articulate the
principle that if a plaintiff seeks an enhancement, Biomet
can assert whatever it otherwise would have overlooked,
nothing in the Agreement is inconsistent with that practice.
The Master Settlement Agreement allows Biomet to seek a
reduced award for any good cause, and gives examples of
reasons Biomet might have. Nothing in the Master Settlement
Agreement allows a plaintiff to use the presumed award as a
floor while the plaintiff seeks an enhancement, just as
nothing allows Biomet to use the presumed award as a ceiling
while it seeks a reduction.
says Biomet lacked good cause to challenge his claim and
reduce the amount he was to be paid, but “good
cause” under paragraph 3(b) is subjective, rather than
objective, and isn't limited to the examples set out in
that paragraph. Under the terms of the Settlement Agreement,
Mr. Hix's case fell in the “contested cases”
category once Biomet disagreed with his categorization of his
claim. Mr. Hix then had two options - mediate his claim or
proceed to trial on the merits.
paragraph 3(c), the parties agreed to “confer in good
faith” during the mediation process. Mr. Hix contends
that Biomet breached that duty. Biomet argues that it had
valid reasons to challenge the value of Mr. Hix's claim
and to offer a lower amount in settlement. Again, I agree.
extent Mr. Hix suggests that Dr. Blakey's affidavit
established a right to a base award under the Settlement
Agreement, he is mistaken. Dr. Blakey's opinion was
stated in conclusory terms and wasn't unsupported by
objective medical evidence. A jury might well accept Dr.
Blakey's testimony, but Biomet could reasonably rely on
Mr. Hix's medical history in determining what it believed
to be the cause of his injuries and the value of his claim.
Mr. Hix hasn't presented any evidence to support his
claim that Biomet acted in bad faith when it challenged the
valuation of his claim or rejected his offer to settle for a
higher amount during mediation. Nothing in the Settlement
Agreement forbids Biomet from deciding not to assert grounds
for reductions when plaintiffs agree to the base award.
is a matter between the parties, and there are no steps the
court can take to settle a case without the parties'
consent. Mr. Hix's case remains pending, but if he wants
to settle it, he will have to negotiate a new agreement with
light of my earlier holdings that Biomet's practice -
responding to enhancement requests with withdrawal of the
base award, a firm offer of a smaller award, and a refusal to
negotiate at mediation - doesn't constitute bad faith,
see Case ...