January 1, 1970 · FLEMING | NOLEN | JEZ, L.L.P.
A motion for the creation of aZimmer NexGen and Zimmer MIS MDL (Multi-District Litigation) was filed on June 6, 2011. The motion seeks to consolidate all Zimmer NexGen knee cases filed in Federal Court to one specific court.
An MDL is a tool attorneys and courts use to more efficiently handle large number of cases that involve similar factual issues. An MDL consolidates or coordinates the pretrial proceedings for these cases. The goal is to avoid duplicative work and wasted resources that would occur if this process were instead litigated in many different court rooms across the country. Presumably an MDL prevents duplication of discovery efforts, such as depositions of witnesses and production of documents. Thus creation of an MDL will optimally save the claimants money on discovery costs, as well as coordinate their efforts and share the workload.
The United States Judicial Panel on Multidistrict Litigation (JPML) is responsible for determining when an MDL should be created. The panel determines whether (1) the cases involve “common questions of fact”; (2) the transfer is convenient for the parties and witnesses; and (3) the transfer “promote[s] the just and efficient conduct” of the cases. 28 U.S.C. § 1407(a). If the criteria are met, the panel may decide that creation of an MDL is appropriate and select the judge(s) and court assigned to the proceedings.
The motion and the accompanying brief argue that Zimmer NexGen cases will involve common issues of fact such as:
1) Whether the NexGen knee is defectively designed or manufactured;
2) Whether the NexGen caused harm to the plaintiffs, and if so to what extent;
3) When defendants first learned that the NexGen was harmful;
4) Whether defendants concealed this knowledge from physicians, patients, and the public;
5) Whether defendants failed to provide adequate warnings
6) Whether defendants engaged in fraudulent and illegal marketing practices,
The JPML could decide the issue either at the upcoming session on July 28, 2011 or at the following session on September 27th, 2011.