United States District Court, N.D. Indiana, South Bend Division
OPINIONS AND ORDER
L. Miller, Jr. Judge
seeks summary judgment in this case contending that it is
entitled to judgment on the merits as a sanction for the
plaintiffs' failure to preserve the M2a devices that were
removed during Walter Jeffers's revision surgeries in
April 2014. For the following reasons, that motion is denied.
judgment is only appropriate if the pleadings, discovery
materials, disclosures, and affidavits demonstrate that there
are no genuine issues of material fact, and that the
non-moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c); Protective Life Ins. Co. v.
Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011). The record
in this case doesn't support the relief requested.
March 7, 2013 - more than a year before Mr. and Mrs. Jeffers
filed their lawsuit - I entered an Explant Preservation Order
in MDL 2667 requiring the plaintiffs to “make good
faith efforts to ensure that non-party medical practitioners,
hospitals, and vendors engaged to facilitate device
preservation preserve [their] Explanted M2a Devices that may
be relevant to the claims, defenses, or subject matter of
[their] case consistent with this order....” [Doc. No.
279 in 3:12md2391]. That order also provided:
OBTAINING EXPLANTED M2a DEVICES
M2a Devices that...are not in either party's
With respect to M2a Devices that...have been explanted but
are not in either party's possession, counsel for a
plaintiff may elect to obtain plaintiff's Explanted M2a
Device from plaintiff's surgeon or the hospital where the
surgery occurred and sent it to a contract laboratory of
plaintiff's choice or a designated storage facility. If
plaintiff's 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 at
Biomet in Warsaw, Indiana.
[Doc. No. 279].
Jefferses' attorney, Christopher Shakib, filed this suit
on April 17, 2014, the day after Mr. Jeffers's first
revision surgery, and almost a week before his second, so
it's reasonable to assume that he was retained before the
first revision, although Mr. Jeffers said in his deposition
that he didn't know when he contacted an attorney. When
Mr. Shakib filed the complaint in April 2014, he already had
a case pending in this MDL docket, and knew or should have
known about the Explant Preservation Order. That knowledge
may be imputed to Mr. and Mrs. Jeffers, see Washington v.
Parkinson, 737 F.3d 470, 473 (7th Cir. 2013); Frey
v. Fraser Yachts, 29 F.3d 1153, 1158 (7th Cir. 1994),
but the inquiry into whether Biomet is entitled to judgment
as a sanction for failing to comply with the order
doesn't stop there.
prevail on its motion, Biomet has to show that the
Jefferses' efforts to obtain the explanted devices and
preserve them weren't made in good faith, e.g.,
that they acted willfully or in bad faith (“for the
purpose of hiding adverse information”),
Trask-Morton v. Motel 6 Operating L.P., 534 F.3d
672, 681 (7th Cir. 2008); Ramirez v. T&H Lemont,
Inc., 845 F.3d 772, 781 (7th Cir. 2016), or that the
failure to preserve the explanted devices was their
“fault” - their actions or failure to act to
preserve the devices were objectively unreasonable.
Marrocco v. General Motors Corp., 966 F.2d 220, 224
(7th Cir. 1992). It hasn't done that.
Jeffers attests that she and her husband asked Dr. Lincoln,
the treating surgeon, to save both of the implants before Mr.
Jeffers's first revision surgery in April 2014, that Dr.
Lincoln said he would, and that his assistant told them at a
follow-up appointment that the devices had been saved and
could be picked up on May 30, 2014. When they returned to Dr.
Lincoln's office on May 30, Mr. and Mrs. Jeffers learned
that the implants were missing. At some point after that, the
hospital informed the Jefferses “that the implants were
not preserved because a ‘doctor's hold' was
never placed on them.”
Mrs. Jeffers' contend that it was reasonable for them to
rely on Dr. Lincoln's representations, and that Dr.
Lincoln's office lost the devices more than a year before
they became subject to the preservation order in October
2014, so it was impossible for them to comply with the order.
sees things differently. It asserts that a verbal request to
save the explanted devices, without more, can't
constitute a good faith effort to ensure that the devices are
preserved. But it cites no supporting authority. Mrs. Jeffers
attests that she asked Dr. Lincoln to save the implants after
they were removed, and when she went to retrieve them from
him on May 30, 2014, she learned they had been
lost. Those statements at least create a genuine
issue of fact regarding the reasonableness of the
Jefferses' actions to obtain and preserve the devices and
their ability or inability to comply with the preservation
order. Biomet hasn't presented any evidence which, if
true, would show that the Jefferses acted willfully and/or in
bad faith when they failed to obtain and preserve the
explanted M2a devices or that they alone were at fault for
failing to do so.
Explant Preservation Order unequivocally states that Biomet
can and “will” make arrangements to acquire the
device, if the plaintiffs don't. The Jefferses filed
their complaint on April 17, 2014, a day after Mr.
Jeffers's first revision surgery and almost a week before
his second revision. It's not clear when Biomet received
the complaint, but it filed an answer on May 16, 2014, when
it was well aware of its rights and obligations under the
Explant Preservation Order. There's no evidence to
suggest that Biomet took any ...