A federal judge overseeing the Zimmer NexGen Knee Implant Products Liability Litigation admitted a plaintiff’s causation expert whose opinion is that the company’s warning labels and instructions failed to warn adequately about the risk of failure for obese patients.
US District Judge Rebecca R. Pallmeyer rebuffed a defense motion under Rule 702 to exclude orthopedic surgeon Dr. Sonny Bal, a professor in the Department of Orthopaedic Surgery at the University of Missouri Health Care, in Beverly Goldin v. Zimmer Inc., Docket No. 11 C 5468.
Knee loosened and collapsed
There are 500 lawsuits filed against Zimmer in MDL No. 2272 in the Northern District of Illinois. Separately, Zimmer is facing 463 lawsuits in IN RE: Zimmer Durom Hip Cup Products Liability Litigation in MDL 2158 before U.S. District Judge Susan D. Wigenton in the District of New Jersey.
The plaintiff had her right knee replaced in 2009 with a NexGen Flex knee made by Zimmer, after exhausting all non-surgical options — but it loosened and collapsed in 2011, when she had it replaced. Total knee replacements usually last for a period of 10 to 15 years or longer.
“Dr. Bal is sufficiently qualified to offer his opinions in this case and that those opinions are not so unreliable that the jury should not consider them,” the court said. “There are disputed issues of material fact concerning the adequacy of Defendant’s warnings and their role in causing Plaintiff’s injury. Those issues should be resolved by a jury.”
The plaintiff is 5-feet one-inch tall and weighs 241 pounds, giving her a body mass index of 45.5, considered morbidly obese. The package inserts warned about the failure of the knee prosthesis for “heavy patients,” which Dr. Bal said is vague. In his opinion, Zimmer had the knowledge, resources, and ability to conduct tests, and to warn, about the NexGen Flex’s risks when implanted in morbidly obese patients. There is no mention of weight or obesity in the “contraindications,” “warnings,” or “precautions” sections of the package insert.
Dr. Bal performs 150 to 400 knee replacements each year. He received his medical degree from Cornell University, a master’s degree in business administration from Northwestern University, and a law degree from the University of Missouri School of Law. He has also completed the requirements for a Ph.D. in materials engineering from the Kyoto Institute of Technology in Kyoto, Japan.
This case is the third to be scheduled for a bellwether trial. The first case brought by plaintiff Kathy Batty resulted in a jury verdict for Zimmer. The court granted summary judgment for Zimmer in the second bellwether case, brought by Theodore Joas, and that ruling is now on appeal. Unlike Batty or Joas, the plaintiff in this case does not assert a claim that her NexGen Flex knee implant was defectively designed. Rather, she contends that Zimmer failed to provide adequate warnings about the implant’s risk of loosening in patients like her.
Plaintiffs’ Co-Lead Counsel
James R. Ronca of Anapol Weiss in Philadelphia, PA; Timothy Becker of Johnson Becker PLLC, Minneapolis, MN and Tobias L. Millwood of Pogust, Braslow, Millrood in Conshohocken, PA