United States District Court, N.D. Indiana, South Bend Division
OPINIONS AND ORDER
L. Miller, Jr. Judge
moved for summary judgment in this case as a sanction for the
plaintiffs' failure to preserve the M2a device that she
alleges was defective and caused her injuries. Today, I deny
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 court entered an
explant preservation order requiring the plaintiffs in all
member cases 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]. The order
OBTAINING EXPLANTED M2a DEVICES
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 Malcome Naylor at
Biomet in Warsaw, Indiana.
[Doc. No. 279].
Bruton had revision surgery in August 2015, more than two
years after the explant preservation order was entered, and
she filed this suit in March 2016. She hired attorney Jeffrey
Lowe before her surgery, based on a recommendation from her
surgeon's “right-hand man” because his firm
had represented other people who had problems with the Biomet
hip, and she signed a formal written fee/employment agreement
two months later, in October 2015. When Mr. Lowe filed the
complaint in March 2016, he already had cases pending in this
MDL, and knew or should have known about the explant
preservation order. That knowledge can be imputed to Ms.
Bruton, 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 also has to show that Ms.
Bruton didn't make a good faith effort to preserve the
explanted device, e.g., that she 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 her
“fault”. Marrocco v. General Motors
Corp., 966 F.2d 220, 224 (7th Cir. 1992). Biomet alleges
the latter. It contends that: Ms. Bruton's failure to
take any action to preserve the explanted device after her
revision surgery was objectively unreasonable; key evidence
was lost and, depriving Biomet of the opportunity to test the
device for any defects and to ascertain the cause of Ms.
Bruton's injuries, and irreparably prejudicing Biomet;
and the only appropriate sanction is to dismiss her claims.
Citing, e.g., Marrocco v. General Motors Corp., 966
F.2d 220 (7th Cir. 1992); Silvestri v. GMC, 271 F.3d
583 (4th Cir. 2001).
no evidence about what any steps either party took to locate
and preserve the device after it was removed in August 2015,
or when the device was actually lost or destroyed. The
explant preservation order gave both parties a right to
obtain and test the device, but neither appears to have made
any effort to exercise that right in a timely fashion. Ms.
Bruton had an obligation to preserve the explanted device,
but before she pays for her omission with her cause of
action, the court needs to know more about what each party
did and didn't do. Ms. Bruton indicated on her Plaintiff
Fact Sheet that she thought her surgeon had the implant, but
no evidence suggests that Biomet ever acted on that
information. While Ms. Bruton and her attorney clearly bear
responsibility for failing to preserve the device, I
can't find on the basis of the limited record before it
that their actions were objectively unreasonable as a matter
of law, or that they were the only ones at fault for failing
to obtain, preserve, and test the explanted device.
Biomet's motion for summary judgment [Doc. No. 81] is