In re Zimmer M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kmectiv Tech.& Versys Femoral Head Prod. Liab. Litig.
| Decision Date | 16 December 2021 |
| Docket Number | 18-MD-2859 (PAC) 18-MC-2859 (PAC) |
| Parties | IN RE ZMMER M/L TAPER HIP PROSTHESIS OR M/L TAPER HIP PROSTHESIS WITH KMECTIV TECHNOLOGY AND VERSYS FEMORAL HEAD PRODUCTS LIABILITY LITIGATION. This Document Relates to Goode v. Zimmer, Inc. et al, 19-cv-03504 Little v. Zimmer, Inc. et al, 18-cv-10393 MDL No.2859 |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs in this multidistrict litigation ("MDL") allege they were harmed by defective hip protheses made by Defendants Zimmer, Inc. and Zimmer US, Inc. (collectively "Zimmer").[1] The Court selected four initial bellwether cases for trial: Nutting, No. 19-cv-699, Pride, No 18-cv-10649, Goode, No. 19-cv-3504, and Little, No 18-cv-10393. In the first bellwether, Nutting, the Court granted summary judgment for Zimmer after excluding testimony by plaintiffs expert Mari Truman. The plaintiff in Nutting has appealed that bellwether case to the Second Circuit.
The Plaintiffs' Executive Committee ("the PEC") now moves to stay the remaining three bellwethers pending the Nutting appeal. The PEC argues the Second Circuit's decision in Nutting will heavily impact, if not resolve, the other three cases. Zimmer opposes the motion to stay maintaining that appeals in individual bellwethers are always expected and mat a stay would be inefficient. For the reasons that follow, the motion to stay Pride, Goode, and Little is GRANTED,
The plaintiffs in this MDL underwent hip-replacement surgeries. They received Zimmer's VerSys femoral head combined with either the company's M/L Taper alone, or M/L Taper with Kinectiv Technology. Plaintiffs allege that when these products are combined, they are prone to micromotion between components, which causes metal release and corrosion. In turn, Plaintiffs allege, the metal release caused them tissue necrosis and pain (among other injuries), and necessitated revision surgeries to replace the products. The plaintiffs' cases against Zimmer were consolidated as an MDL in this Court.
MDL consolidation is designed to "promote the just and efficient" resolution of a large No. of similar cases. 28 U.S.C. § 1407(a). With this central purpose in mind, bellwether trials are intended "to provide data points for settlement discussions with respect to the universe of cases" within the MDL. In re Gen. Motors LLC Ignition Switch Litig., Nos. 14-MD-2543 (IMF), 14-MC-2543 (JMF), 2016 WL 1441804, at *9 (S.D.N.Y. Apr. 12, 2016).
Accordingly, the Court selected four bellwether cases for trial: Nutting, Pride, Goode, and Little. See Order No. 52 at 1, ECF No. 320. The Court found that these cases would "offer Q the best chance for the earliest resolution of a significant portion of the MDL cases" and "provide the Parties with useful data points" about the strength of their respective cases. Id. at 2. The Court refers to these four cases as the "initial" bellwethers.
Nutting was the first bellwether scheduled for trial. After voluntarily dismissing many counts, the plaintiff in Nutting alleged three claims against Zimmer: negligence; strict products liability-defective design; and strict products liability-failure to warn. See ECF No. 466 ("Summary Judgment Order") 8; reconsideration denied, ECF No. 486. Nutting's hip- replacement surgery occurred in Idaho, where she lived, and the parties agreed that Idaho law governed her three claims. See Summary Judgment Order at 8, As part of the expert discovery in Nutting, the PEC disclosed a biomechanical engineering expert, Mari Truman. Truman wrote a report opining that the Zimmer hip-replacement products at issue were designed defectively. See Id. at 11. However, because the Court found Truman's opinions suffered from "too large a gap between the data she relies upon and the conclusions she reaches," it excluded her opinion under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. See Id. at 15.
With Truman's testimony gone, the Court granted summary judgment against Nutting. Without reliable expert testimony to prove Zimmer's products were designed defectively, Nutting could not prevail on her negligence and design-defect claims. See Id. at 31. The Court also granted summary judgment against Nutting on her failure to warn claim, because it was undisputed that her surgeon did not read any product warnings before the surgery. See Id. In other words, it did not matter how thorough Zimmer made its warnings, because the surgeon never read them in the first place-and Nutting trusted her surgeon to warn her of any risks. See Id. at 25-26 (discussing Idaho's "learned intermediary" doctrine). Nutting's claims therefore failed for want of proximate cause. Nutting has appealed the Court's decision to the Second Circuit. See ECF No. 492.
Importantly, the PEC designated Truman as its design-defect expert for all four initial bellwethers-not just for Nutting's case. See ECF No. 486 ("Reconsideration Order") 8 (discussing how Truman was the sole design-defect expert "for all four of the initial bellwether cases"). Without Truman at its disposal, the PEC sought to disclose a replacement design-defect expert, but the Court denied the motion. See Id. The Court noted the remaining initial bellwethers rely on laws from states other than Idaho. See Id. at 9. Thus, it was "not clear" the other initial bellwethers would be "completely lost absent a new expert." Id. The Court concluded that "even if Pride, Goode, and Little are decided on summary judgment, that judgment will still provide the parties with relevant information about the strengths and weaknesses of the remaining cases in the MDL." Id.
Although Nutting is on appeal, the remaining three initial bellwethers remain pending in this Court. The second bellwether is Pride. Following a stipulation of dismissal, the remaining claims in Pride are negligence; strict products liability-defective design; and strict products liability-failure to warn.[2] Compare ECF No. 533 () with ECF No. 43, No. 18-cv-10649, at 5-6 (). This whittled set of claims in Pride is identical to the set of claims that the Court decided on summary judgment in Nutting.
The parties have also stipulated that the Court's order excluding Truman in Nutting applies to Pride. See ECF No. 531. The parties thus agree not to relitigate the exclusion of Truman from Pride, but they also agree the PEC has preserved its right to appeal that exclusion in Pride, too. See id.
As currently scheduled, the parties have a lot to do in Pride in the coming months. See generally Order No. 55, ECF No. 329. Summary judgment and Daubert motions are pending; motions in limine are due in less than two months. See Id. Trial in Pride is slated to begin March 28, 2022. See Id. Pre-trial schedules for Goode and Little have not been set.
The PEC now moves to stay Pride, Goode, and Little pending the Second Circuit's decision in Nutting. See ECF No. 496 (PEC's Motion); ECF No. 498 (PEC's Brief); see also ECF No. 502 (PEC's Reply Brief). Zimmer opposes the motion to stay. See ECF No. 501 (Zimmer's Opposition).
District courts have discretion to stay a proceeding. Fed. Ins. Co. v. Weinstein, No. 18 Civ. 2526 (PAC), 2019 WL 1407455, at *2 (S.D.N.Y. Mar. 28, 2019). This discretion is "incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). The movant-here, the PEC-bears the burden of proving the need for a stay, See Weinstein, 2019 WL 1407455 at *2.
The parties disagree about what legal factors apply to stay a bellwether case in an MDL. Zimmer relies on the factors from Hilton v. Braunskill, 481 U.S. 770, 776 (1987), while the PEC contends the applicable factors come from Kappel v. Comfort, 914 F.Supp. 1056, 1058 (S.D.N.Y. 1996). Hilton, of course, is binding on this Court in a way that Kappel is not, but each test applies in a different context. No. court in this Circuit appears to have distinguished between Hilton and Kappel-or decided which should apply in the MDL context, [3] But upon review of the applications of both tests, the Court concludes the MDL context in this case is closely analogous to the typical Kappel context.
The Hilton factors are used to stay a case pending an interlocutory appeal from that same case. See, e.g., In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) ().[4] The Hilton factors are relatively strict because interlocutory appeals are strongly disfavored-the goal is to keep a single case together and to save appellate review for after final judgment. See Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865-86 (2d Cir. 1996).
The more lenient Kappel factors, on the other hand, are used to stay a case pending an appeal in a related, but separate case. See, e.g., Estate of Heiser v. Deutsche Bank Tr Co. Americas, No. 11 Civ. 1608 (AJN) (MHD), 2012 WL 5039065, at *2 (S.D.N.Y. Oct. 17, 2012) (collecting cases). The Kappel factors are often used, in a court's discretion, to conserve resources when the outcome of a parallel proceeding will simplify the legal or factual issues in the stayed case. See, e.g., Fried v. Lehman Bros. Real Estate Assocs. Ill, No. 11 Civ. 4141 (BSJ), 2012 WL 252139, at *5 (S.D.N.Y. Jan. 25, 2012) (...
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