Nicholson v. Biomet, Inc.

• Decision Date: 06 May 2021
• Docket Number: No. 18-CV-3057-CJW-KEM,18-CV-3057-CJW-KEM
• Citation: 537 F.Supp.3d 990
• Parties: Lori NICHOLSON, Plaintiff, v. BIOMET, INC.; Biomet Orthopedics, LLC ; Biomet Manufacturing Corp.; and Biomet US Reconstruction, LLC, Defendants.
• Court: U.S. District Court — Northern District of Iowa

537 F.Supp.3d 990

Lori NICHOLSON, Plaintiff,

v.BIOMET, INC.; Biomet Orthopedics, LLC ; Biomet Manufacturing Corp.; and Biomet US Reconstruction, LLC, Defendants.

No. 18-CV-3057-CJW-KEM

United States District Court, N.D. Iowa, Central Division.

Signed May 6, 2021

Roxanne Barton Conlin, Devin Kelly, Roxanne Conlin & Associates PC, Des Moines, IA, Bryan Hofeld, Pro Hac Vice, Jeffrey L. Haberman, Pro Hac Vice, Sarah J. Schultz, Pro Hac Vice, David Silverman, Pro Hac Vice, Jonathan R. Gdanski, Pro Hac Vice, Scott P. Schlesinger, Pro Hac Vice, Schlesinger Law Offices PA, Fort Lauderdale, FL, for Plaintiff.

Stephanie Anne Koltookian, Thomas J. Joensen, Faegre Drinker Biddle & Reath LLP, Des Moines, IA, Adrienne Franco Busby, Pro Hac Vice, Faegre Baker Daniels LLP, Stephanie N. Russo, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Indianapolis, IN, Bruce Jones, Pro Hac Vice, Michelle Marie Tessier, Pro Hac Vice, Joseph M. Price, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, Bryan D. Pasciak, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Chicago, IL, Erin Linder Hanig, Pro Hac Vice, John D. LaDue, Pro Hac Vice, LaDue Curran & Kuehn LLC, South Bend, IN, for Defendants.

MEMORANDUM OPINION AND ORDER

C.J. Williams, United States District Judge

TABLE OF CONTENTS

I. BACKGROUND...1005

II. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW...1006

A. Applicable Law...1006

B. Design Defect...1008

1. Evidence of Design Defect...1008

2. Reasonable Alternative Design...1009

3. Causation...1010

C. Punitive Damages...1010

D. Conclusion...1013

III. DEFENDANT'S MOTION FOR A NEW TRIAL...1013

A. Applicable Law...1014

B. Against the Weight of the Evidence...1014

C. Legal Errors at Trial...1014

1. Allowing plaintiff to introduce unrelated second-generation metal-on-metal devices and post-sale evidence, but preventing defendants from presenting evidence to distinguish the M2a Magnum from other second-generation devices...1014

2. Refusing to instruct the jury that defendant's warnings were adequate as a matter of law...1016

3. Admitting Dr. Naide's causation opinions...1017

4. Dr. Li's new, undisclosed opinions regarding causation and future damages...1018

a. Exceeded scope of non-retained treating physician...1018

b. Unreliable under FRE 702...1020

5. Dr. Kantor's testimony...1021

6. Mari Truman medical causation testimony...1022

7. Biomet's 2014 sale price...1023

8. Applying Iowa law to punitive damages...1024

9. Submitting punitive damages to jury...1026

10. Cumulative effect...1026

D. Remittitur...1027

IV. MOTION TO AMEND JUDGMENT...1029

A. Pre and Post-Judgment Interest...1030

B. Punitive Damages...1031

V. BILL OF COSTS...1032

A. Applicable Law...1032

B. Analysis...1033

1. Fees of the Clerk...1033 2. Fees for Service of the Summons and Complaint...1034

3. Fees for Transcripts...1034

4. Fees and Disbursements for Printing...1035

5. Fees for Witnesses...1036

6. Copying Fees...1036

7. Other Costs...1036

C. Conclusion...1038

VI. CONCLUSION...1038

This matter is before the Court on defendant's¹ Renewed Motion for Judgment as a Matter of Law (Doc. 427), defendant's Motion for New Trial, or in the Alternative, for Remittitur (Doc. 425)² , and plaintiff's Motion to Amend the Final Judgment (Doc. 433). Plaintiff timely resisted defendant's Renewed Motion for Judgment as a Matter of Law (Doc. 444) and defendant filed a timely reply (Doc. 461). Plaintiff also timely resisted defendant's Motion for a New Trial (Doc. 445) and defendant filed a timely reply (Doc. 462). Defendant timely resisted plaintiff's Motion to Amend the Final Judgment. (Doc. 438).

This matter is also before the Court on plaintiff's Bill of Costs. (Doc. 424). On December 21, 2020, defendant filed objections to plaintiff's Bill of Costs (Doc. 432) and on January 11, 2021, plaintiff replied to the objections (Doc. 440).

On March 5, 2021, the Court held a hearing on the above matters. (Doc. 467). Although the Court informed the parties that they were free to present arguments on all the motions, the parties limited their oral arguments to defendant's Renewed Motion for Judgment as a Matter of Law and defendant's Motion for a New Trial. (Id. ). Following the hearing the parties filed supplemental briefing, although the Court did not request the briefing and the parties did not seek leave of Court to do so. (Docs. 468, 469, & 470).

For the following reasons, defendant's Renewed Motion for Judgment as a Matter of Law is denied . (Doc. 427). Defendant's Motion for a New Trial is denied . (Doc. 425). Plaintiff's Motion to Amend the Judgment is granted . (Doc. 433). Defendant's objections to the Bill of Costs (Doc. 432) are sustained in part and overruled in part .

I. BACKGROUND

This case is a products liability matter involving defective artificial hip implants

and was originally filed as part of a multidistrict litigation ("MDL"). (Doc. 321, at 4, 7). Defendant is comprised of several corporations that design, manufacture, market, promote, and sell medical devices. (Id. , at 4). Defendant designed, manufactured, marketed, promoted, and sold an artificial hip implant known as the Biomet M2a Magnum Hip System ("M2a Magnum"). (Id. ). Lori Nicholson ("plaintiff")³ is one of thousands of individuals who received an M2a Magnum artificial hip implant

, which she received to remedy severe pain she had in her natural hip. (Id. , at 5). Plaintiff experienced no complications during her hip replacement surgery, which was performed by Dr. Emile Li ("Dr. Li") on July 10, 2007, and had no complaints immediately after the surgery. (Id. , at 5–6). Indeed, plaintiff did not experience hip pain from 2008 to 2011, and she was able to return to normal activities and to her job. (Id. , at 6). In late 2011, however, plaintiff's hip pain returned, and she again sought Dr. Li's medical help. (Id. ). Based on his observations, Dr. Li concluded that a part of plaintiff's M2a Magnum hip implant "had migrated to a vertical orientation." (Id. ). Specifically, Dr. Li found that plaintiff had a "loose acetabular component status post left total hip." (Id. ). Dr. Li performed a revision surgery to correct the loose component. (Id. ). There were no complications during the surgery during which Dr. Li replaced the M2a Magnum implant with a metal-on-polyethylene ("metal-on-poly") implant, also manufactured by Biomet; the new implant appears to have been successful. (Id. ).

A nine-day jury trial was held from November 9, 2020, to November 20, 2020. (Docs. 396 & 418). The jury was instructed to consider plaintiff's design defect claim. (Doc. 397, at 21). Before the case was submitted to the jury, defendant moved for judgment as a matter of law on the design defect claim. (Doc. 407). The Court denied the motion. (Id. ). The case was then submitted to the jury. The jury returned a verdict in favor of plaintiff and awarded plaintiff $1,050,000 in compensatory damages and $2,500,000 in punitive damages. (Doc. 419).

II. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

Defendant renews its motion for judgment as a matter of law on plaintiff's design defect claim and on plaintiff's request for punitive damages. (Doc. 431, at 7). Defendant makes numerous arguments in support of its motion, several of which overlap with arguments it makes in its motion for a new trial. First, defendant argues plaintiff's design defect claim fails as a matter of law because plaintiff "failed to offer sufficient evidence to permit a reasonable jury to conclude that the M2a Magnum's design was defective." (Id. , at 11). Second, defendant argues plaintiff "failed to offer sufficient evidence to permit a reasonable jury to conclude that an alleged design defect in the M2a Magnum caused [plaintiff's] injuries." (Id. , at 17). Third, as to the punitive damages, defendant asserts plaintiff's punitive damages request fails because plaintiff "failed to offer sufficient evidence to permit a reasonable jury to conclude that an award of punitive damages was merited." (Id. , at 28). The Court will discuss the applicable law and then address each of these issues in turn.

A. Applicable Law

Rule 50 of the Federal Rules of Civil Procedure establishes the standard for a court to grant a motion for judgment as a matter of law. It provides, in pertinent part:

(a) Judgment as a Matter of Law.

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.

(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:

(1) allow judgment on the verdict, if the jury returned a verdict;

(2) order a new trial; or

(3) direct the entry of judgment as a matter of law.

FED. R. CIV. P. 50(a)–(b). In ruling on a motion under Rule 50, a court must draw all reasonable inferences in favor of the nonmoving party. Roberson v. AFC Enters., Inc. , 602 F.3d 931, 933 (8th Cir. 2010) ; Canny v. Dr....