Zimmer's Expert Takedown Poses Hurdles For Knee Patients - Law360

Zimmer's Expert Takedown Poses Hurdles For Knee Patients - Law360

by Sindu Sundhar


Law360, New York (November 12, 2015, 5:43 PM ET) -- Zimmer won the first bellwether trial in the federal multidistrict litigation over its NexGen knee implant series in part by successfully curbing its adversary's expert testimony on the adequacy of its warnings, which means the plaintiffs now must fight harder for such testimony in future trials or retool their strategy, attorneys say.

An Illinois federal jury rejected on Nov. 6 bellwether plaintiff Kathy Batty’s negligent design and failure to warn claims against Zimmer Inc. This outcome leaves the plaintiffs with some tough decisions about their strategy moving forward, attorneys say.

"The dynamics of the MDL have certainly changed now — the loss of expert testimony about the warnings was clearly very detrimental to the plaintiffs,” said Max Kennerly, of counsel at Tor Hoerman Law. “As they go forward in the MDL, they're going to have to find a way to make their case compelling."

Losing on a failure to warn claim can be a particularly tough blow for plaintiffs in a trial as such claims are generally considered to be their major battleground in the courtroom. While design defect claims can be harder to prove to a jury, since they are more technical, plaintiffs can count on failure to warn claims as a way to appeal more easily to a layperson's sense of fairness, attorneys say.

"With design defect, everything you're going to present there is complicated medical testimony about how medical devices are designed and should be designed, as compared to the cleaner, simpler claim that the company didn't tell the doctor about the real risks of the product, which is easier to prove in front of jury," Kennerly said.

"Legally, a failure to warn claim is also less susceptible to dispositive motions like summary judgments, because of the standards courts apply, and in the end, your jury is given a wide berth to decide the facts of what is an adequate warning," he added.

The court presiding over the case had previously rejected expert testimony submitted by Batty on whether there were adequate warnings on the NexGen devices that allegedly tend to loosen, which can impair flexibility and cause pain in patients.