United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. MILLER, JR. JUDGE
moved for 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 device that was
removed during Mr. Babcock's revision surgery in December
2013. For the following reasons, I am denying that motion.
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); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23(1986); 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.
facts are undisputed. In March 2013, I entered an Explant
Preservation Order in MDL 2391 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
OBTAINING EXPLANTED M2a DEVICES
A. 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 send 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].
Babcock hired an attorney (Jerrold Parker from Parker
Waichman LLP) in December 2013, when he had his revision
surgery, and filed this suit in February 2014, almost a year
after the explant preservation order was entered. When Mr.
Parker and co-counsel Richard Arsenault filed the complaint
in 2016, they already had cases pending in this MDL, and knew
or should have known about the explant preservation order.
That knowledge can be imputed to Mr. Babcock, see
Washington v. Parkinson, 737 F.3d 470, 473 (7th Cir.
2013); Frey v. Fraser Yachts, 29 F.3d 1153, 1158
(7th Cir. 1994), when, as here the record clearly indicates
that Mr. Parker instructed the hospital to send the explanted
device to him, but Mr. Babcock changed the directive.
assessment report by United Health services completed on the
day of Mr. Babcock's revision surgery stated that:
Patient states he does not want his explanted device to go to
the lawyer, as planned. He stated he wants to take it
himself...Called Parker/Wa[i]chman LLP and spoke with...legal
assistant. She notified the lawyer for this case....
[Doc. No. 199-4].
Babcock testified during his deposition in November 2017
(almost four years after the revision surgery) that he asked
someone at the hospital “if they would take [the
explanted device] because [h]e knew if we [presumably
Biomet's attorneys] took it that'd be the end of it,
” and that someone told his wife it was “in a
drawer.” [Doc. No. 199-3]. Mr. Babcock's surgeon,
Dr. Cicoria, indicated during his deposition in November 2017
that he didn't know if the hospital still had the device.
[Doc. No. 199-5].
prevail on its motion, Biomet must show that Mr. Babcock
didn't make a good faith effort to preserve the explanted
device, e.g., that he 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 device was his
“fault”. Marrocco v. General Motors
Corp., 966 F.2d 220, 224 (7th Cir. 1992). Biomet alleges
the latter. It contends that: Mr. Babcock acted unreasonably
by preventing the explant from being sent to his attorney,
failing to timely secure the explant from the hospital, and
assuming that the hospital would hold it indefinitely; the
loss of the device irreparably prejudices Biomet's
ability to defend itself; and the only appropriate sanction