Slater v. Biomet, Inc.

• Decision Date: 26 March 2017
• Docket Number: Cause No. 3:14–cv–1055 RLM–MGG
• Citation: 244 F.Supp.3d 803
• Parties: Kimberly SLATER, Plaintiff, v. BIOMET, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

244 F.Supp.3d 803

Kimberly SLATER, Plaintiff,

v.BIOMET, INC., et al., Defendants.

Cause No. 3:14–cv–1055 RLM–MGG

United States District Court, N.D. Indiana, South Bend Division.

Signed March 26, 2017

Andrew J. Cross, PHV, Jeffrey J. Lowe, PHV, Carey Danis & Lowe, Clayton, MO, for Plaintiff.

Erin Linder Hanig, John D. LaDue, LaDue Curran & Kuehn LLC, South Bend, IN, for Defendants.

OPINION AND ORDER

Robert L. Miller, Jr., Judge

Kimberly Slater sued Biomet for damages in connection with the alleged failure of her Biomet M2a Magnum hip implant

. Biomet moved for summary judgment, arguing that her claims are time-barred based on (1) a proposed date on which all plaintiffs were on constructive notice of potential claims and (2) facts specific to Ms. Slater. I disagree with Biomet's proposed universal bar date and analysis as to Ms. Slater's products liability and negligence claims.

I. STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings, discovery materials, disclosures, and affidavits demonstrate no genuine issue of material fact, such that the movant is entitled to judgment as a matter of law. Protective Life Ins. Co. v. Hansen , 632 F.3d 388, 391–92 (7th Cir. 2011). I must construe the evidence and all inferences that reasonably can be drawn from the evidence in the light most favorable to Ms. Slater, as the non-moving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As the moving party, Biomet bears the burden of informing me of the basis for its motion, together with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If Biomet meets that burden, Ms. Slater can't rest upon the allegations in the pleadings, but must "point to evidence that can be put in admissible form at trial, and that, if believed by the fact-finder, could support judgment in [her] favor." Marr v. Bank of Am., N.A. , 662 F.3d 963, 966 (7th Cir. 2011) ; see also Hastings Mut. Ins. Co. v. LaFollette , No. 1:07-cv-1085, 2009 WL 348769, at *2 (S.D. Ind. Feb. 6, 2009) ("It is not the duty of the court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which he relies."); Hammel v. Eau Galle Cheese Factory , 407 F.3d 852, 859 (7th Cir. 2005) (summary judgment is "not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events").

II. THE PROPOSED BAR DATE

First, Biomet asks me to establish a bar date applicable to all plaintiffs. Biomet argues that enough information was publicly available to put any reasonable plaintiff on notice by February 10, 2011 that her injury might be connected to Biomet's M2a Magnum metal-on-metal hip implant

. As Biomet sees it, if a plaintiff was injured on or before February 10, 2011, the statute of limitations would begin to run then. For a plaintiff was injured after February 10, 2011, the statute of limitations would begin to run on the date of injury.

The discovery rule postpones the accrual of a cause of action until the plaintiff knew, or through exercise of reasonable diligence should have known, that she was injured. See, e.g. , Fla. Stat. § 95.031(2)(b) ; 735 Ill. Comp. Stat. 5/13–213(d) ; N.C. Gen. Stat. § 1–52(16) ; Wash. Rev. Code § 7.72.060(3) ; Martin v. Arthur , 339 Ark. 149, 3 S.W.3d 684, 690 (1999) ; In re Med. Review Panel of Howard , 573 So.2d 472, 474 (La. 1991) ; Moreno v. Sterling Drug, Inc. , 787 S.W.2d 348, 351 (Tex. 1990).

Biomet contends that the following publicly available information put a reasonable plaintiff on notice of a potential claim by the proposed bar date: the device's Instructions for Use, articles in medical journals, press reports, and the Food and Drug Administration's websites. The Instructions for Use for Biomet's metal-on-metal hip implants

disclosed that using the device could pose a risk of exposure to metal debris, including osteolysis, metal hypersensitivity, and elevated metal ion levels. Eight 2010 medical journal articles raised concerns about the risks associated with metal-on-metal hip implants, including an editorial in the Journal of Arthroplasty, the official, peer-reviewed journal of the Association of Hip and Knee Surgeons. See Ross Crawford et al., Metal on Metal: Is it Worth the Risk? , J. ARTHROPLASTY , Sept. 2010, at 1.¹

Biomet argues that news reports from early 2010 reporting on the risks of metal debris with metal-on-metal hip implants

also put plaintiffs on notice of potential claims. See, e.g. , Barry Meier, As Use of Devices Grows, Studies Raise Concerns , N.Y. TIMES , Mar. 4, 2010.² More news reports followed DePuy's August 2010 recall of two ASR metal-on-metal hip implants. See, e.g. , Natasha Singer, Hip Implants Are Recalled by J. & J. Unit , N.Y. TIMES , Aug. 27, 2010.³

Last, Biomet contends that the FDA notified the public when it launched two websites discussing potential health risks of metal-on-metal hip implants

by February 10, 2011. See Concerns about Metal–on–Metal Hip Implant Systems , FOOD & DRUG ADMIN. (last updated Feb. 10, 2011), https:// web.archive.org/web/20110214064145/http://www.fda.gov/MedicalDevices/ProductsandMedicalProcedures/ImplantsandProsthetics/MetalonMetalHipImplants/ucm241604.htm; Information for Patients Who Have Metal–on–MetalHip Implants, FOOD & DRUG ADMIN. (last updated Feb. 10, 2011), https:// web.archive.org/web/20110528045143/http://www.fda.gov/MedicalDevices/ProductsandMedicalProcedures/ImplantsandProsthetics/MetalonMetalHipImplants/ucm241766.htm. These websites warned that metal-on-metal hip implants might leave debris that could damage bones and tissue surrounding the implant, and encouraged people to contact their physicians if they experienced any symptoms. Biomet argues that the combined effect of the Instructions for Use, journal articles, press reports, and FDA warnings put a reasonable person on notice of the connection between Biomet's device and an injury from exposure to metal and metal debris no later than February 10, 2011.

Three district court decisions in MDL dockets inform Biomet's analysis. In In re

Avandia

Marketing, Sales Practices and Products Liability Litigation , Judge Rufe held that a bar date was appropriate because the cumulative effect of publicity about a prescription drug's relationship to adverse cardiovascular events was sufficient, as a matter of law, to put an individual who had been injured on notice that Avandia could be to blame. No. 07-MD-01871, 2012 WL 3205620, at *4 (E.D. Pa. Aug. 7, 2012). This publicity included:

1. a New England Journal of Medicine study finding that Avandia

increased the risk of heart problems by forty-three percent;

2. a joint statement from the American College of Cardiology, the American Diabetes Association, and the American Heart Association expressing concern and advising patients to speak to their physicians;

3. an FDA advisory committee conclusion that Avandia increased heart risk;

4. FDA action requiring that a warning be added to Avandia's label;

5. the drug manufacturer sending letters to healthcare professionals on studies linking Avandia and heart health;

6. the drug manufacturer publishing a "Dear Patient" letter about the risks of heart problems;

7. a wave of media attention following the above, including lead stories on the national nightly news; and

8. numerous lawsuits filed against the drug manufacturer, leading to the formation of the MDL.

Id. at *3. Evidence that Avandia

prescriptions dropped by forty-five percent and sales by fifty-four percent as of the proposed bar date showed that these events "were regarded as significant by physicians, patients, and attorneys." Id. at *4.

In the MDL docket involving Vioxx

, Judge Fallon applied a bar date to multiple plaintiffs based on:

1. a medical study finding that Vioxx

triggered a significant increase in abnormal cardiovascular events;

2. media reports linking Vioxx

to cardiovascular risks;

3. a new Vioxx label that the manufacturer submitted, the FDA approved, and resulted in substantial press coverage;

4. filing of a class action; and

5. the manufacturer removing Vioxx from the market, triggering "arguably the largest and most-publicized prescription drug withdrawal in this country's history."

In re Vioxx Prods. Liab. Litig. , 522 F.Supp.2d 799, 803, 808, 814 (E.D. La. 2007). The court held that "[b]oth the national and local media coverage of the withdrawal of Vioxx

from the market were sufficient to put the plaintiffs on notice of a potential link between their alleged injuries and the use of Vioxx." Id. at 808.

In the Zyprexa

litigation, Judge Weinstein held that a bar date was appropriate when:

1. the FDA announced it would require an additional warning on the drug's label;

2. leading medical associations issued a consensus statement concluding that Zyprexa

posed a risk; and

3. the drug manufacturer distributed a "Dear Doctor" letter to physicians nationwide informing them of the label change.

In re Zyprexa Prods. Liab. Litig. , 727 F.Supp.2d 101, 107 (E.D.N.Y. 2010) ; see also Burrell v. Astrazeneca LP , No. CIV.A. 07C01412(SER), 2010 WL 3706584, at *6 (Del. Super. Sept. 20, 2010) (establishing a bar date in litigation regarding Astrazeneca's Seroquel

).

I can't say that, as a matter of law, the notice to a reasonable plaintiff of a potential claim against Biomet approached what happened in the Avandia

, Vioxx and Zyprexa cases. First, in both the Avandia and Zyprexa cases, the manufacturer published or distributed letters alerting patients or physicians to the risks associated with the product. This would have been the simplest way for Biomet to put all of its customers on notice of a potential claim, and Biomet chose not to do so.

Second, two of the three cases included substantially...