In Re: Zimmer Nexgen Knee Implant Products Liability Litigation

Filing 1023

MEMORANDUM Order Signed by the Honorable Rebecca R. Pallmeyer on 1/6/2014. Mailed notice(vcf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN RE: ZIMMER NEXGEN KNEE
IMPLANT PRODUCTS LIABILITY
LITIGATION

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No. 11 C 5468
Judge Rebecca R. Pallmeyer

MEMORANDUM ORDER
On December 26, 2013, the Zimmer 1 Defendants ("Zimmer") filed two objections [1019]
to this court's December 10, 2013 supplemental protective order [1012]. That order governs the
production of certain documents, classified as Special Attorney's Eyes Only ("SAEO"), that
originated from prior litigation and arbitrations between Defendants and Doctor W. Norman
Scott.

In the opinion accompanying that order, the court acknowledged the need for the

supplemental order in light of the potential risk to Zimmer, should the proprietary information in
these documents fall into the hands of competitors' employees or consultants. Zimmer now
argues that in two respects, "the court's [order] does not fully carry out the intentions the court
states in its Memorandum Order."

(Zimmer Objections at 1.)

After reviewing Zimmer's

objections, the court has determined that neither objection warrants further modification to the
supplemental protective order. The court addresses Zimmer's objections in turn below.
Discussion
As Zimmer points out, the court's opinion accompanying its December 10 supplemental
protective order ("SPO") recognized the potential competitive threat to Zimmer from allowing
Plaintiffs to disseminate the SAEO documents to current employees and consultants of

1

"Zimmer" includes the following defendants: Zimmer, Inc., Zimmer Holdings, Inc.,
Zimmer Surgical, Inc., f/k/a Zimmer Orthopaedic Surgical Products, Inc., Wilson/Phillips
Holdings, Inc., d/b/a Zimmer Wilson/Phillips, Orthopaedic Technologies, LLC, d/b/a Zimmer TriState (incorrectly named as (1) Zimmer Tri-State d/b/a Tri-State Orthopaedic, (2) Zimmer TriState d/b/a Zimmer, Inc., and/or (3) Zimmer Tri-State d/b/a Tri-State Orthopedic), K. Michael
Melia, d/b/a Zimmer Melia & Associates, Inc., Zimmer Orthobiologics, Inc., Zimmer US, Inc., and
Zimmer Production, Inc.

Zimmer's direct competitors. (Memorandum Opinion and Order [1012], hereinafter "Order," at
8.) To address this potential risk, but balancing Plaintiffs' legitimate discovery needs, the court
crafted the SPO (using the parties competing drafts as a template) as well as Exhibit C, a form
that must be signed by any outside consultant or expert before any SAEO information is
disclosed to that individual.

The SPO limits access to SAEO documents to (1) Plaintiffs'

attorneys and their staff; and (2) "outside consultants or experts retained by [Plaintiffs]." 2 (Id. at
13.) Exhibit C, meanwhile, requires any outside consultant or expert to affirm that he or she is
"not presently (a) an officer, director, or employee of a competitor of Defendants with respect to
the products at issue in the present suit, or (b) involved in competitive decision-making for a
competitor of Defendants as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3
(Fed Cir. 1984), with respect to the products at issue in the present suit." (Id.)
I.

Application of SPO to Consultants Working for Zimmer Competitors
Zimmer

believes

that,

despite

language

in

the

court's

memorandum

order

acknowledging concerns about the SAEO documents reaching competitors employees or
consultants, the order as written "does not include consultants within its prohibitions." (Zimmer
Objections [1019] at 3.) Zimmer's fear appears to hinge on a misreading of the SPO and Exhibit
C. The SPO, as currently drafted, requires any individual to whom the SAEO documents will be
disclosed to affirm that she is neither (a) an employee of nor (b) otherwise involved in
competitive decision-making for a Zimmer competitor with regard to the products at issue here.
(Order at 18.) Zimmer's objection seemingly ignores the latter of these two prohibitions, quoting
only from (a). (Zimmer Objections at 3.) Zimmer would prefer that the order prohibit any current
consultant of a Zimmer competitor from accessing the SAEO documents. Though the court
2

The supplemental protective order augments and does not supersede the
original protective order this court entered on November 17, 2011 [165]. That order allowed
disclosure of confidential documents (as opposed to SAEO documents) to "any person(s)
noticed for deposition or designated as trial witnesses" as well as the parties' attorneys and their
retained consultants and experts. (Protective Order at 5.)
2

declines to impose that restriction, the SPO, as currently drafted, does limit disclosure to those
consultants whose work for Defendants' competitors is insubstantial. For the reasons explained
in the court's earlier order, this distinction is appropriate in light of the fact that the threat posed
to Zimmer in a products liability suit like this one is "generally diminished" compared to a suit
between competitors. (Order at 8.)
II.

Application of SPO to Witnesses Not Retained by Plaintiffs
Defendants argue that the SPO is also inconsistent with the court's memorandum order

in that "[it] does not address in any way the disclosure of SAEO documents to employees or
consultants of Zimmer competitors who have not been retained as consultants or experts by
Plaintiffs." (Zimmer Objections at 4.) (emphasis in original) This contention, too, appears to be
based on a misunderstanding of the SPO.
While it is true that section B(2) of the SPO only requires that Exhibit C be signed by any
"outside consultant or expert" who views the SAEO materials (i.e., others not retained by
Plaintiffs are not required to affirm that they do not work for Zimmer competitors), Defendants
ignore the fact that section B(1) limits access to these materials to only (a) attorneys for the
plaintiffs (and their staff); and (b) "outside consultants or experts retained by the Plaintiffs[.]"
(Order at 13.) In other words, any witness not retained by Plaintiffs as a consultant or expert is
not required to sign Exhibit C because that witness is prohibited from accessing the SAEO
materials in the first place.
CONCLUSION
For the foregoing reasons, the court declines to modify the SPO [1012] as requested in
Defendants' objections [1019].
ENTER:

Dated: January 6, 2014

_________________________________________
REBECCA R. PALLMEYER
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United States District Judge

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