United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT.
their attorneys agreed on resolution of Donald Eastman's
claim against Biomet, Inc., Biomet sent Mr. Eastman a release
to sign. Mr. Eastman signed the release after secretly
modifying it so that the release no longer was designed to
exempt Biomet from further claims by Mr. Eastman. Mr. Eastman
sent the signed paper back to Biomet and received a check.
Mr. Eastman cashed the check and retains the money, but now
claims Biomet owes him more. Mr. Eastman and Biomet both have
moved for summary judgment, and I will grant Biomet's
motion because neither the law nor the facts support Mr.
Standard of Review
judgment is appropriate when “the pleadings,
depositions, answers to the interrogatories, and admissions
on file, together with the affidavits, if any, show that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). A genuine issue of material
fact exists whenever “there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict
for that party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). In deciding whether a
genuine issue of material fact exists, “the evidence of
the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Weigle v. SPX Corp., 729 F.3d 724, 730 (7th Cir.
2013). The existence of an alleged factual dispute, by
itself, won't defeat a summary judgment motion;
“instead, the nonmovant must present definite,
competent evidence in rebuttal, ” Parent v. Home
Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012),
and “must affirmatively demonstrate, by specific
factual allegations, that there is a genuine issue of
material fact that requires trial.” Hemsworth v.
Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007);
see also Fed. R. Civ. P. 56(e)(2). “[S]ummary
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.” Steen v.
Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting
Hammel v. Eau Galle Cheese Factory, 407 F.3d 852,
859 (7th Cir. 2005)).
Judicial Panel on Multidistrict Litigation established this
MDL docket for claims in which plaintiffs claim personal
injuries from a metal-on-metal artificial hip that Biomet
manufactured and placed into the stream of commerce. In
January 2014, Biomet and Plaintiffs' Executive Committee
entered into a Master Settlement Agreement. The Master
Settlement Agreement provides a procedure for categorizing
case values and resolving disputes between individual
plaintiffs and Biomet over the settlement payment an
individual plaintiff is entitled to receive.
April 2014, Donald Eastman filed a complaint against Biomet,
asserting that his Biomet M2a-38 hip replacement device was
defective. Eastman v. Biomet, Inc., et al, Case No.
3:14-cv-00771-RLM-CAN. Mr. Eastman and Biomet agreed to
settle that suit, and in February 2015, Mr. Eastman signed a
confidential release of all claims confirming the agreement
and fully and completely releasing all claims against Biomet.
release says Mr. Eastman "shall receive the sum of $25,
000.00.” The release also included Mr. Eastman's
acknowledgment that the $25, 000 “shall constitute the
full compensation which will ever be paid to [Mr. Eastman] by
[Biomet].” After Mr. Eastman executed the release,
Biomet paid him $25, 000. Mr. Eastman admits that payment was
deposited into the trust account of Mr. Singleton, Mr.
Eastman's counsel of record in that suit. The parties
filed a stipulation of dismissal signed by Mr. Singleton
[Doc. No. 59], and I ordered dismissal with prejudice [Doc.
Eastman now says he “conditionally signed” the
release that Biomet drafted, asserting that it didn't
“absolve Biomet from future claims on damages, ”
and that Biomet is in breach by offering and awarding Eastman
a settlement much lower than the amount stipulated in
paragraph 2 of the Master Settlement Agreement. Mr. Eastman
made several changes to the signed release's terms before
Mr. Singleton sent it to Biomet:
• he changed “irrevocable” to
“revocable” in Paragraph 5;
• he changed “binding” to
“nonbinding” in Paragraph 8j; and
• he changed “Indiana” to
“Arkansas” in the choice of law provision.
Eastman says he made those changes to protect his right to
sue Biomet in the future for breaching the Master Settlement
Agreement. Biomet argues that the parties stipulated to
dismissal without Mr. Eastman or his counsel telling it of
months after I dismissed the first suit, Mr. Eastman filed
this case without an attorney in the western district of
Arkansas, contending that Biomet breached the parties'
settlement agreement by paying him only $25, 000 rather than
$200, 000. The Judicial Panel on Multidistrict Litigation
transferred the new case to the MDL, and in April 2016, I
denied Mr. Eastman's motion for ...