January 1, 1970 · FLEMING | NOLEN | JEZ, L.L.P.
On July 6, 2011, a motion was filed with the United States Judicial Panel on Multidistrict Litigation (MDL) to consolidate all Zimmer NexGen knee replacement cases to one federal judge in the United States District Court for the Northern District of Illinois.1
Consolidation of many individual cases in federal court is appropriate when there are sufficient “common questions of fact” to ensure that the transfer will “be for the convenience of the parties and witnesses and will promote the just and efficient conduct of such action.”2 The Plaintiff has filed a request to consolidate the 28 pending actions and all subsequent Zimmer NexGen Knee Replacement cases to this single judge. Zimmer opposes this motion to create an MDL but argues that if an MDL is to be created, it should be before the Honorable Robert L. Miller, Jr. in the United States District Court for the Northern District of Indiana, South Bend Division.3
On Thursday, July 28, 2011, the MDL Panel is being asked whether to consolidate all of the individual Zimmer NexGen Knee Replacement cases before one judge.4 This one judge would then organize and administer the discovery process for all Zimmer NexGen Knee Replacement cases until the case is ready for trial. The judge would organize the cases to work them up individually, dealing with the case specific medical issues, usually a certain number at a time. The judge would also organize the cases to be worked up on a global level, where things that every plaintiff would do are done with group representatives (often called “Plaintiff’s Steering Committee” or “Plaintiff’s Common Benefit Committee”). Once trial ready, each Zimmer NexGen Knee Replacement plaintiff would be able to decide whether to allow this assigned trial judge proceed with the trial or to send the case back to their home state.
Zimmer explains in their application to the MDL panel that the Zimmer NexGen brand was started for knee replacements in 1995. However, the court is being asked to create an MDL on only a specific part of those Zimmer NexGen high-flex Knee Implant and the Zimmer Minimally Invasive Solutions (Zimmer MIS) tibial plate. A Zimmer NexGen knee replacement surgery uses many different implants to create a new knee:
a tibial plate (or “tray”), a femoral component and a weight-bearing plastic inert between the two (“tibial insert” or “articulating surface’). The tibial tray attaches to the top of the lower leg bone (tibia). The femoral component attaches to the bottom of the upper leg bone (femur). The articulating surface, made of high-grade polyethylene, snaps into the tray and provides the surface on which the femoral component rotates or articulates.5
The Zimmer NexGen high flex knee component can be any one of these three parts. In addition, a patient may also receive a new patella (knee cap).
The application for an MDL was filed due to the number of Zimmer NexGen cases reaching “critical mass.” The pleading to the Court cites a study showing a 9 percent failure rate for the Zimmer NexGen CR-Flex knee as well as an FDA Class II recall for certain types of the Zimmer NexGen LPS-Flex. The pleading requesting the formation of an MDL also requests that the Court include the Zimmer NexGen MIS tibial plate as part of the MDL since there was a study showing the Zimmer NexGen MIS tibial plate had a failure rate as high as 24 percent and also was the subject of a Class II FDA recall. Zimmer argues that because there are so many different parts, even though they may all be high flex, that consolidation is not reasonable. It is expected that hundreds, if not thousands, of Zimmer NexGen Knee Replacement cases will be filed.
2 28 U.S.C. 1407(a).
3 Case MDL No. 2272; Docket Entry 10.
5 Case MDL No. 2272; Docket Entry 10.