Zimmer Biomet (NYSE:ZBH) last week won its 3rd bellwether trial in the multi-district litigation brought over the NexGen Flex knee implant, after a federal jury in Illinois found against the plaintiff.
The FDA in 2007 cleared the NexGen Flex implant, designed to provide more flexibility than other knee replacement devices. Beverly Goldin is 1 of thousands of product liability plaintiffs in the MDL who allege that the device can’t withstand that extra flexion, despite the Warsaw, Ind.-based company’s marketing claims. The plaintiffs also allege that a design flaw makes the device more prone to premature loosening requiring revision procedures.
Zimmer Biomet denies that the devices are defective and said they have a successful track record; Judge Rebecca Pallmeyer of the U.S. District Court for Northern Illinois, who is overseeing the MDL, and 2 juries have agreed so far.
“Judgment is entered in favor of defendant Zimmer Inc., and against plaintiff Beverly Jemma Goldin,” according to court documents filed Jan. 26 in the most recent trial. Pallmeyer, who did not release the jury verdict form, ordered both parties to submit any post-judgment filings within 30 days.
Zimmer Biomet won the 2nd bellwether last fall when Pallmeyer found that the plaintiff failed to prove that a design defect caused the implant to fail. The jury in the 1st bellwether in November 2015 likewise cleared the company, finding that the plaintiff failed to prove defective design and failure to warn claims.
At least 5,900 NexGen product liability lawsuits have been consolidated into the MDL under Pallmeyer, but the going hasn’t been smooth. It was a challenge to find suitable bellwethers; in June 2015 the judge issued a so-called “Lone Pine” order requiring plaintiffs to prove their cases. Named for a 1986 decision dismissing a mass toxic tort case against a New Jersey landfill, a Lone Pine order requires plaintiffs to show a link between their injuries and the product accused of causing them.