Zimmer Biomet Lawsuits and Recall

Biomet M2a Magnum Hip Implant Products Liability Litigation

In the Biomet M2a Magnum Hip Implant Products Liability Litigation before Judge Robert L. Miller in the United States District Court, Northern District of Indiana (MDL 2391), a settlement program was announced in early 2014 in which certain patients implanted with Biomet’s defective M2a Magnum hip implant system were to receive up to $200,000. Despite settlement of 93 lawsuits in October 2016, depositions are ongoing and the admissibility of expert testimony and reports will be litigated through August 2017, with bellwether trials most likely taking place in late 2017 or early 2018.

Plaintiffs Griseth DeJesus, Chanton Harris and Rita Taranto initially sued in Florida state court asserting that they were injured by the Biomet M2a Magnum Hip Implant. According to the complaints, “the Distributor acted as Biomet’s local representatives with regards to the implant in question, selling, marketing, and distributing the implant in question, selling, marketing, and distributing the implants for profit.”

Though their lawsuits were transferred to the MDL, these plaintiffs filed a Motion to Remand the cases back to the Florida state court because the distributors could be held strictly liable for injuries caused by defective product under Florida law. Strict liability is absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault. Accordingly, it will most likely prove easier for these defendants to recover damages from Biomet (now Zimmer Biomet).

In remanding the cases to Florida state court, the federal court stated, “Contrary to Biomet’s argument, the plaintiffs have alleged a sufficient element of control to state a colorable claim against the Distributors under Florida law. … All three plaintiffs allege unequivocally that the Distributor placed the implants in the stream of commerce by arranging their sale to hospitals and doctors … Strengthening this conclusion, Florida district courts have consistently held that medical device distributors can be strictly liable for product defects …”

Stryker v. Zimmer Biomet

Stryker Orthopedics recently filed a lawsuit accusing Zimmer Biomet of poaching Stryker’s roster of sales representatives. In the United States District Court for Southern Texas, Stryker alleged a poaching scheme by Zimmer Biomet of “concerted and deliberate unfair competition, improper use of Stryker’s confidential and trade secret information, and improper solicitations of Stryker’s customers and employees” in the Houston area.

In 2013, Stryker sued a pair of former Stryker sales agents who went to Bioment, accusing them of scheming to poach reps and business from Stryker in Louisiana and New York. A jury in February 2016 found for Stryker and awarded $745,195 in damages.

In this lawsuit, Zimmer Biomet allegedly enticed multiple Stryker reps to set up a rival foot & ankle business targeting Stryker customers in breach of their non-compete and non-solicitation agreements, according to the lawsuit. The lawsuit alleges that the ex-representatives, Andrew Ruggles and Carson Combs, “are now moving the business of those Stryker customers to defendants and utilizing Stryker confidential and trade secret information.” Ruggles left Stryker in November 2016 and allegedly recruited Combs to follow suit just four days later.

“Soon after the end of their respective employment at Stryker, Stryker received information that Ruggles and Combs were working together for defendant Biomet South Texas together, using joint efforts to solicit their former Stryker customers in the Houston area,” according to the lawsuit, which also alleges that other former Stryker employees are “participating in the tortious activities of defendants.” Stryker has requested Judge Gray Miller to issue a temporary restraining order and preliminary injunction barring Zimmer Biomet, Ruggles and Combs from further alleged violations.

Shoulder Replacement Recall

In February, the United States Food & Drug Administration (FDA) released information on a Class 1 recall of Zimmer Biomet‘s Comprehensive Reverse Shoulder System. Zimmer Biomet’s Comprehensive Reverse Shoulder system is a shoulder replacement device designed to be surgically implanted to restore arm movement in patients with rotator cuff tears who have developed artropathy and have failed shoulder joint replacements. According to the FDA, a Class 1 recall is the most serious type, signifying “a reasonable probability that use of these products will cause serious injuries or death” The medical devices are being recalled because they have been found to fracture at a higher rate than stated in the product’s labeling. Fractures may require painful revision surgeries, which could cause permanent loss of shoulder function, infection or death.

Zimmer Biomet recalled a total of 3,662 devices with product codes KWS and PAO and all lots with part number 115340 manufactured between August 25, 2008 and September 27, 2011, and distributed between October 2008 and September 2015.

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