The Zimmer NexGen High-Flex litigation (MDL No. 2272) has been in full throttle recently, including two status conferences in front of Judge Rebecca Pallmeyer. The focus of the first status conference on September 16th in Chicago was to appoint a leadership structure to represent the plaintiffs. It was Zimmer’s position that only three Co-lead Counsel and one Liaison Counsel were necessary to manage a litigation that already included 100 filed cases, and hundreds more expected in the future. Judge Pallmeyer saw otherwise and granted plaintiffs’ motion for leadership that consists of three Co-lead Counsel, one Liaison Counsel, and fifteen additional attorneys acting as the Plaintiffs’ Steering Committee (“PSC”).
Last week, both parties once again stood in front of Judge Pallmeyer to discuss issues pertaining to Case Management Order #1, the entry of a Protective Order, and related discovery issues. Judge Pallmeyer ordered that all 19 firms on the PSC will be allowed to see all discoverable documents and that there is a presumed privilege with regards to communications amongst the PSC members. Both positions were requested by plaintiffs, and opposed by Zimmer. In addition, Judge Pallmeyer showed that she intends to move the litigation forward as she ordered that all Rule 26 Initial Disclosures be provided within 21 days of the status conference.
The MDL litigation adds to what has already been a long road for the NexGen knee replacement devices. Recently, Zimmer has been hit by multiple fronts with regards to their NexGen system. One study released by Dr. Richard A. Berger concluded that the CR-Flex Porous device failed at an alarming rate. Last year, the MIS Stemmed Tibial component was the subject of a recall. And in July of 2010, Senator Chuck Grassley began an investigation of the safety and efficacy of Zimmer’s hip and knee devices after a New York Times article highlighted disputes between Zimmer and two of its top consultants.
Judge Pallmeyer has taken a proactive approach to the litigation and scheduled monthly status conferences, with the next conference scheduled for November 10. Make sure and check back as we will be keeping you up-to-date on the status of MDL 2272.