Hess et al v. Biomet, Inc. et al

Filing 404

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the Court DENIES Defendants' motion to grant judgment in its favor 391 . The Court DENIES Defendants' motion for a hearing or oral argument 398 . The Court GRANTS Plai ntiffs' motion for leave to file a surreply 399 . The Court also GRANTS Plaintiffs' motion for an award of Prejudgment interest 384 . Prior to entering final judgment, however, Plaintiffs will present updated computations from Mr. Soward including sales accruing after October 20, 2021 and interest on sales from data unavailable as of trial. Defense counsel are ORDERED to show cause within two weeks of entry of this order as to why sanctions should not be imposed. Signed by Chief Judge Jon E DeGuilio on 6/28/2022. (jss)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHARLES HESS, et al.,
Plaintiffs,
v.

Case No. 3:16-CV-208 JD

BIOMET, INC., et al.,
Defendants.
OPINION AND ORDER
On August 9, 2021, after a six-day jury trial, a verdict was entered in favor of Plaintiffs
Charles Hess, Marty Higgins, Robert “Glen” McCormick, Ronald Papa, Al Tornquist, and Frank
Shera (collectively, the “Plaintiffs”). (DE 379.) On November 23, 2021, the Court denied the
motion for judgment as a matter of law brought by Defendants Biomet, Inc., and Zimmer Biomet
Holdings, Inc (collectively, the “Defendants”). (DE 389.) The Court now considers Plaintiffs’
motion for an award of prejudgment interest (DE 384) and Defendants’ motion to grant judgment
in its favor on the basis of several affirmative defenses (DE 391).
A.

Factual Background
In the early 1980s, Plaintiffs were distributors of medical devices for Zimmer, Inc.

Biomet was attempting to enter the medical device field and approached each of the six plaintiffs
about joining Biomet as independent distributors. At the time, though, Biomet’s sales were
smaller than Zimmer’s, which meant that moving to Biomet would result in the Plaintiffs losing
compensation in the short term, since distributors were paid on commission and Biomet could
not offer large up-front compensation. In order to entice them, Biomet offered each plaintiff
lifetime commissions on sales made after their retirement, in addition to the sales they made as

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distributors. Between 1980 and 1983, each of the six plaintiffs accepted these offers and signed
distributorship agreements.
Section 9 of the distributorship agreements established a long-term commission program
for each of the Plaintiffs. (DE 158-2 § 9.) After the long-term program vested, upon retirement,
the Plaintiffs would be entitled to payments which were percentages of the total “net sales:” one
and one-quarters percent of the first $4 million in net sales per year, and one-half of one percent
of all further net sales, with no maximum. These payments would continue for the Plaintiffs’
lifetimes (or for a minimum of ten years). (Id.) The contracts proceeded to define the term net
sales:
The term “net sales” shall be defined as gross sales made within the subject
distributorship at the time this program is initiated and actually collected by Biomet
less returns and allowances and less adjustments for nonpayment of invoices as
provided herein.
(Id.) Each of the Plaintiffs retired between 1995 and 1999. Biomet then began paying long-term
commissions to the Plaintiffs on a bi-monthly basis. These commissions were based on the sales
of orthopedic products, but not other business units Biomet had acquired. The commission
statements contained sparse information beyond the amount being paid until 2007, when the
commission statements began listing each item sold upon which the Plaintiffs were receiving
commissions. However, these statements did not list the items sold upon which the Plaintiffs
were not receiving commissions.
Around 2015, Biomet began undergoing a merger with Zimmer. The Plaintiffs asserted
that they should be entitled to commissions not only on Biomet products, but also on any
Zimmer products once the merger went through. The Plaintiffs claimed that it was around then
that they also discovered that Biomet had been paying them long-term commissions only on

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Biomet Orthopedic products, not from the sales of other products by companies under the
Biomet umbrella.
On April 4, 2016, Plaintiffs filed a complaint. (DE 1.) As relevant here, Plaintiffs brought
a claim for breach of contract alleging that Biomet “failed to pay [Plaintiffs] a commission on all
Biomet products sold in their respective territories as required by the terms of the retirementincome program.” (DE 1 ¶ 96.) In their answer, Defendants asserted seventeen affirmative
defense. (DE 50.)
At the summary judgment stage, parties disputed whether “subject distributorship” within
the aforementioned distributorship agreement included all Biomet products sold in their
respective territories, even those that the Plaintiffs did not and were not authorized to sell — as
interpreted by Plaintiffs — or only on the products sold by the Plaintiffs at the time they retired.
(DE 210 at 1.) The Court denied summary judgment on the breach of contract claim, concluding
that the agreement was ambiguous and that none of the extrinsic evidence submitted resolved the
ambiguity. (Id. at 30.) The Court also determined that a number of Defendants’ affirmative
defenses were either resolved by concession or as a matter of law. Following summary judgment,
only eight of the seventeen affirmative defenses remained. (Id. at 39.) The parties later agreed
that the affirmative defenses of waiver, estoppel, unjust enrichment, acquiescence, and laches
were to be tried by the Court, not the jury. (DE 301 at 14; DE 267 at 3 n.3.) The other remaining
affirmative defenses were either excluded by the Court in an order addressing the parties’
motions in limine, (DE 301 at 7, 12–14), or allowed to be presented at trial. (Id. at 14–16.)
A six-day jury trial commenced. At the end of Plaintiffs’ case-in-chief, Defendants
moved for a motion for judgment of matter of law under Federal Rule of Civil Procedure 50,
which the Court took under advisement. Ultimately, the jury returned a verdict in favor of a

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finding that Defendants breached the Distributorship Agreements, in part, by failing to pay
commissions owed for the net sales of sports medicine and trauma products. (DE 379.) Plaintiff
Shera was only awarded damages on trauma products. This verdict was in line with the
Defendants’ predominate interpretation of the contracts — that Plaintiffs were only entitled to
retirement commissions on the products sold in their territories at the time they retired.
After the verdict was returned, the Defendants renewed their motion for judgment as a
matter of law. (DE 381.) On November 23, 2021, the Court denied this motion and advised the
Defendants that if they intended “to move on their remaining equitable affirmative defenses,”
they had 14 days to do so. (DE 389 at 18.) In line with this order, the Defendants then filed a
motion seeking judgment in their favor on the remaining affirmative defenses, which include
waiver, estoppel, laches, unjust enrichment, and acquiescence. 1 (DE 391.) Plaintiffs filed a
response (DE 393) and Defendants filed a reply (DE 397). Plaintiffs then filed a motion seeking
leave to file a surreply, along with the surreply, arguing that Defendants raised new, previously
unaddressed arguments in their reply. (DE 399.)
Plaintiffs have also filed a motion for an award of prejudgment interest. (DE 384.) In
their response, Defendants argue that this motion is premature given the pending affirmative
defenses. (DE 388.) The Court agrees. Therefore, the Court will first consider Defendants’
affirmative defenses prior to considering Plaintiffs’ motion for an award of prejudgment interest.
B.

Discussion
(1) Affirmative Defenses

The Court refers to the brief accompanying Defendants’ motion seeking judgment in their favor on the remaining
affirmative defenses, (DE 392), as their “opening brief.”

1

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The Defendants argue that five affirmative defenses justify entering judgment in their
favor: (1) Plaintiffs’ claims have been waived; (2) Plaintiffs are estopped from asserting the
claims; (3) Plaintiffs’ claims are untimely and wholly or partially limited due to laches and other
equitable doctrines limiting the allegations of stale claims; (4) Plaintiffs’ claims are barred
because they have been unjustly enriched; and (5) Plaintiffs’ claims are barred by the doctrine of
acquiescence. (DE 392 at 3.)
As an initial matter, the Court notes that neither acquiescence nor unjust enrichment are
separate affirmative defenses. “[A]cquiescence . . . is [not] an independent equitable remedy,
[but rather] is an alternate first element of equitable estoppel.” O.K. Sand & Gravel, Inc. v.
Martin Marietta Corp., 786 F. Supp. 1442, 1447 n.4 (S.D. Ind. 1992). Acquiescence is also
considered as an element in the laches affirmative defense. SMDfund, Inc. v. Fort Wayne-Allen
Cnty. Airport Auth., 831 N.E.2d 725, 729 (Ind. 2005). 2 Accordingly, the Court will consider
acquiescence when it considers estoppel and laches. See also Ind. R. Trial P. 8(C) (listing out
various affirmative defenses, including estoppel, laches, and waiver, but not acquiescence).
Unjust enrichment is also not an independent affirmative defense, but rather is “more
appropriately asserted as a claim, as opposed to a defense[.]” City of Mishawaka v. Kvale, 810
N.E.2d 1129, 1135 n.5 (Ind. Ct. App. 2004); see Warrior Ins. Grp., Inc. v. Insureon.com, Inc.,
No. 00 C 3619, 2000 WL 1898867, at *1 (N.D. Ill. Dec. 29, 2000) (“[U]njust enrichment is not
an affirmative defense.”). The Defendants fail to cite a single case which supports that unjust
enrichment can be used as an affirmative defense. In fact, in their opening brief, Defendants fail
to include any discussion of case law to support their unjust enrichment argument. (DE 392 at

Acquiescence is also an alternative way to prove waiver. However, “[w]aiver is an affirmative act and mere
silence, acquiescence or inactivity does not constitute waiver unless there was a duty to speak or act.” Bobeck Real
Estate Co., Inc. v. Frontier N. Inc., 120 F. Supp. 3d 845, 854 (N.D. Ind. 2015).

2

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20–21.) In their reply brief, the Defendants do cite to two cases which they claim support their
argument: New Welton Homes v. Eckman, 830 N.E.2d 32 (Ind. 2005) and Belle City
Amusements, Inc. v. Doorway Promotions, Inc., 936 N.E.2d 243 (Ind. Ct. App. 2010). 3 (DE 397
at 12.) However, these cases are inapplicable and appear to be unrelated to unjust enrichment.
New Welton Homes held that a discovery rule typically applied in tort law for statute of
limitations purposes could not be applied in contract law because allowing such a rule to
“[supersede] the contractual limitations” would burden the parties with unbargained-for
obligations. 830 N.E.2d 32. Belle City Amusements held that damages awarded in a breach of
contract case by the trial judgment were not reasonably certain given that the damages awarded
extended beyond the end-date of the contract. 936 N.E.2d 243. Neither case even mentions
unjust enrichment, let alone discusses it in any depth. Since the Defendants have been unable to
cite a single case which supports their unjust enrichment argument, the Court deems it waived.
United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“[P]erfunctory and
undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived .
. . .”).
Unlike acquiescence and unjust enrichment, waiver, estoppel, and laches are independent
affirmative defenses. For these affirmative defenses, the burden of proof rests with the
Defendants specifically cite these cases for the proposition that “windfalls should be avoided, even in the context
of breach of contract . . . .” (DE 397 at 12.) Belle City Amusements indicates that, when awarding damages, gross
profits should not be awarded, but rather that net profits should be awarded, since otherwise the party would receive
a “windfall in the form of that portion of lost gross income representing expenses of operations saved by defendant’s
breach.” 936 N.E.2d at 251. New Welton Homes describes how allowing the “discovery rule” to supersede a
contractual limitation would cause a “windfall” by burdening parties with unanticipated obligations. 830 N.E.2d at
35. While these cases mention “windfalls,” one when discussing awarding damages and the other when discussing
whether a discovery rule should supersede a contractual limitation, neither remotely concerns unjust enrichment.
Additionally, the Court sees no reason why awarding damages for this breach of contract would constitute a
“windfall.” Biomet used the long-term commission program as a way to entice the Plaintiffs to leave Zimmer and
agree to distribute with Biomet. Now Biomet owes those long-term commissions. Rather than being a windfall, this
is the result of their initial bargain.
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Defendants. Paint Shuttle, Inc. v. Cont’l Cas. Co., 733 N.E.2d 513, 524 (Ind. Ct. App. 2000)
(“An affirmative defense is a defense upon which the proponent bears the burden of proof . . .
.”); BKCAP, LLC v. Captec Franchise Tr. 2000-1, No. 3:07-CV-00637, 2010 WL 3219303, at *8
(N.D. Ind. Aug. 12, 2010) (“Waiver is an affirmative defense and the burden of proof rests with
the party asserting it.”); Barnhill v. Liberty Mut. Fire Ins. Co., 129 F. Supp. 2d 1192, 1201 (N.D.
Ind. 2001) (“One who alleges and relies upon an estoppel has the burden of establishing all facts
necessary to constitute it.”); Clay v. State, 508 N.E.2d 800, 803 (Ind. 1987) (“Laches is an
affirmative defense and the party raising such a defense has the burden of proof by a
preponderance of the evidence.”). The Court proceeds to consider each of these affirmative
defenses in turn.
(a) Waiver
Defendants first argue that the Plaintiffs “affirmatively and impliedly waived the right to
dispute their Long-Term Commissions.” (DE 392 at 3.) As an initial matter, the Court addresses
a point of confusion by the Defendants regarding the law of waiver. Defendants assert that the
doctrine of waiver applies “where a statement was made in a party’s presence which he did not
deny, if the circumstances would have, as here, called for a denial.” (DE 392 at 4.) Defendants
only support for this proposition is a case issued by the Indiana Supreme Court in 1871, entitled
Pierce v. Goldsberry, 35 Ind. 317, 321 (Ind. 1871). Cases from the 1800s may have relevance in
the proper context. Indeed, in certain circumstances, they may be dispositive of the legal issue
being addressed. However, in the instant case, it is unclear why Defendants believe Pierce lends
any support to the proposition they assert. The issue in Pierce was whether evidence had been
improperly excluded at trial. The defendant in Pierce attempted to testify that the plaintiff had
remained silent and adopted certain prior statements, but the trial court excluded this testimony.

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The court in Pierce held that the exclusion of this evidence at trial was improper, as the plaintiff
had “heard and understood what was said by [the defendant]” and that the situation “called upon
and required [the plaintiff] to speak.” Id. at 322. While Pierce concluded that another party’s
silence may, under certain circumstances, be admitted at trial to show an opposing party’s
admission, it does not address, in any manner, whether silence amounts to waiver of a legal right.
In fact, Indiana law is clear that mere silence does not typically suffice to demonstrate
waiver of a legal right. A waiver is the voluntary and intentional relinquishment of a known
right. Smylie v. State, 823 N.E.2d 679, 688 n.13 (Ind. 2005) (quoting United States v. Olano, 507
U.S. 725, 733 (1993)) (“Waiver indicates an intentional relinquishment or abandonment of a
known right.”). A valid waiver involves both the “knowledge of the existence of the right and the
intention to relinquish it.” In re Est. of Highfill, 839 N.E.2d 218, 222 (Ind. Ct. App. 2005)
(citation and quotation marks omitted). The waiver “must be made by the person whose rights or
remedies are to be affected.” Matter of S.L., 599 N.E.2d 227, 229 (Ind. Ct. App. 1992) (citation
omitted). Waiver may be shown by either express or implied consent. City of Crown Point v.
Misty Woods Properties, LLC, 864 N.E.2d 1069, 1079 (Ind. Ct. App. 2007). However, waiver
requires an affirmative act and mere silence, acquiescence, or inactivity will not constitute
waiver unless there is a duty to speak or act. See Old Plank Trail Cmty. Bank, N.A v. Mattcon
Gen. Contractors, Inc., 137 N.E.3d 308, 311 (Ind. Ct. App. 2019).
Therefore, there were two ways that Defendants could seek to prove waiver. First, they
could show that there was: (1) knowledge of the existence of the right and (2) an affirmative act
showing an intention to relinquish the right. Or, in the alternative, Defendants could show that
there was: (1) knowledge of the existence of the right; and (2) silence or inactivity when there
was a duty to speak or act. Since knowledge of the existence of the right is necessary for either

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method of demonstrating waiver, the Court initially examines whether Defendants have shown
that Plaintiffs had knowledge that they were entitled to commissions beyond what they were
receiving.
The Court finds that the Defendants have failed to show that Plaintiffs had actual or
constructive knowledge that they were entitled to commissions beyond what they were receiving.
Defendants first argue that the biweekly commission statements provided to each of the Plaintiffs
after their retirements provided sufficient information to give Plaintiffs either actual or
constructive knowledge. Defendants assert that “[b]eginning at least as early as 2007, the
commission statements had a column with Item Description, and the Plaintiffs knew what the
listed products were or could have asked if they were uncertain.” (DE 392 at 5.)
There were two sets of commission statements: those issued prior to 2007, and those
issued from 2007 and beyond. The Court initially considers the statements issued prior to 2007.
These commission statements included no information except the “Total Commissions” paid.
Without any further information about what products they were being paid for (and what
products they were not being paid for), these commission statements support an inference that
Plaintiffs lacked knowledge that they weren’t being paid commissions they were entitled to, at
least until 2007. Furthermore, multiple Plaintiffs provided testimony indicating that these
statements provided no information that would have allowed them to determine that Defendants
were underpaying them. (Hess Testimony, DE 367 at 18:8–21:19; Papa Testimony, Id. at
131:22–132:21; McCormick Testimony, Id. at 225:4–225:21; Higgins Testimony, DE 373 at
27:25–28:21; Tornquist Testimony, Id. at 90:3–91:1.) Dan Hann, Defendants’ sole witness, also
admitted that based on the commission sheets issued prior to 2007, a reader would not be able to

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determine which products Plaintiffs were receiving retirement commission for. (Hann
Testimony, DE 371 at 39:14–41:18.)
Defendants make various assertions which imply that Plaintiffs, in their testimony,
admitted that they knew of underpayments prior to 2007. For example, Defendants assert that
“Plaintiff Higgins admitted that he knew in 1999 what he was not being paid on, and that he did
nothing about it.” (DE 392 at 8.) Defendants point to testimony where Higgins admitted that, in
1999, he “realized [he wasn’t] being paid on EBI, on biologics, [and] on Lorenz . . . .” (Higgins
Testimony, DE 373 at 33:12–34:8.) Similarly, Defendants assert that Plaintiff “Tornquist waived
his right to raise this dispute” on his commission payments because he “admitted that he did not
carry dental, spine, Walter Lorenz, EBI, or biologics,” “had written confirmation he would not
be paid on ‘all products,’” and “knew as early as 1987 that his retirement commissions would not
include other categories, like EBI products.” (DE 392 at 8.)
However, these admissions do not demonstrate that either Higgins or Tornquist knew that
they were not being paid commissions which they were legally entitled to. EBI was a subsidiary
of Biomet who sold bone growth stimulators and spinal stimulation products. (DE 367 at 67:17–
68:6.) Walter Lorenz was a company purchased by Biomet which sold Microfacial products. (DE
368 at 86:13–88:11). The jury found that Biomet was not liable for failing to pay commissions
on Biologics, Microfixation, Spine, Dental, or Electrical Stimulation Products. (DE 379.) This
verdict was in line with the Defendants’ primary interpretation of the contracts, that if the
Plaintiffs did not sell the products during their time as an active distributor, then they were not
entitled to retirement commissions on those products. Higgins and Tornquist’s admissions that
they knew their retirement commissions excluded EBI (i.e., electrical stimulation products),
Lorenz (i.e., Microfixation products), and Biologics products simply show that they knew they

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were not receiving commissions which they were not legally entitled to, since they did not sell
those products at the time of their retirement. Crucially, it does not show that Higgins or
Tornquist knew Biomet was failing to provide commissions they were legally entitled to, which
is what is required for the Defendants to prove waiver. See In re Est. of Highfill, 839 N.E.2d at
222 (explaining that a valid waiver requires “knowledge of the existence of the right and the
intention to relinquish it”).
After 2007, the commission statements began to include an “Item Description,” which
described the products on which retirement commissions were being paid. However, these
commission statements did not include any information regarding the products on which the
Plaintiffs were not being paid commissions. Multiple Plaintiffs testified that the commission
statements, even after 2007, would not have allowed them to identify what products they were
not receiving commissions on. (Papa Testimony, DE 367 at 132:17–132:21; Higgins Testimony,
DE 373 at 30:2–6; Tornquist Testimony, Id. at 90:23–91:1.)
Defendants argue that because Plaintiffs could have reached out to Biomet for further
information on the commissions, Plaintiffs knew of their rights and waived them. 4 For example,
Defendants point to Plaintiff Papa testifying that “if he ‘thought [he was] being shortchanged at
any point in time, there was no question as to who to call.’” (DE 392 at 6.) Another example that
Defendant gives is that Plaintiff Hess could have “[s]imply call[ed] up Biomet, or for that matter,
ask[ed] [his] brother-in-law” to help him identify the products listed. (Id. at 5.) The Court
believes that these hypotheticals are entirely consistent with Plaintiffs’ testimony that they did
The Court notes that even if Plaintiffs knew of their rights and could have reached out that this is not, on its own,
sufficient to demonstrate waiver. Indiana law is clear that there must be knowledge of a right and intentional
relinquishment of this right. This intentional relinquishment may be either through an affirmative act or silence and
a duty to speak up or act. However, silence alone is not sufficient. Old Plank Trail Cmty. Bank, N.A, 137 N.E.3d at
311. As discussed later in this opinion, Defendants never argue that Plaintiffs had a duty to speak.
4

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not know they were being shortchanged. After all, if a Plaintiff did not know they were being
shortchanged, why would they inquire further? An individual who believed he was being paid
everything he was owed would have no reason to conduct any further investigation.
Similarly, Defendants argue that Plaintiffs “could have learned exactly what was being
sold in their distributorships” since they had “close relationships with their successors.” (Id. at
4.) However, the mere fact that Plaintiffs may have had close relationships with the successors is
insufficient to show knowledge. If there was evidence that the Plaintiffs had, in fact, reached out
to these successors and received information showing that they were not receiving commissions
they were entitled to, then this would be evidence tending to show knowledge. But that they
could have hypothetically reached out, but did not, and could have hypothetically gained
information, but did not, is entirely consistent with the Plaintiffs being unaware that any wrong
had been done to them. Nor does the fact that the Plaintiffs could have reached out, but did not,
show that a reasonably diligent person would have reached out. See Intel Corp. Inv. Pol’y Comm.
v. Sulyma, 140 S. Ct. 768, 772 (2020) (“[T]he law will sometimes impute knowledge — often
called “constructive” knowledge — to a person who fails to learn something that a reasonably
diligent person would have learned.”).
Defendants do include some other arguments outside of these hypotheticals about what
Plaintiffs could have done. However, these arguments are equally unpersuasive. Defendants
argue that Plaintiff McCormick could have accessed the data of the products in his former
territory “because he worked for his successor after he retired from Biomet.” (DE 392 at 7.)
Defendants also assert that a letter sent from Mr. McCormick’s wife in which she advised
Biomet that it reduced Mr. McCormick’s commission rate too soon, from the 1.25% owed on the
first $4 million dollars in sales to .5% after, supports a finding of “knowing waiver.” (Id.) Even

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though Ms. McCormick noted in her letter that Biomet had “lowered our percent rate too soon in
February ’02 which was only a total sales of 2.8 million for territory so far since September of
’01,” (DE 367 at 249:11–14), the Court finds that this letter is insufficient to demonstrate Mr.
McCormick’s knowledge that he was not being paid commissions on products he was legally
entitled to. First, at issue is whether Mr. McCormick had knowledge, not whether his wife did,
and Mr. McCormick specifically testified that he did not look at the commission reports, even
though his wife did. (DE 367 at 253:9–16.) Additionally, Mr. McCormick’s wife, in her letter,
was primarily addressing whether the percentage commission was correct, utilizing the overall
value of Mr. McCormick’s successor’s territories, not whether the individual products included
to calculate the total value were correct. (Id. at 249:12–24.) Given that this letter was (1) from his
wife and (2) primarily addressed overall sales in successor territories, not the underlying
products, the Court does not believe this is sufficient to demonstrate that Mr. McCormick knew
he was not receiving commissions on certain product lines he was entitled to receive.
Defendants also raise a few arguments specific to their communications with Plaintiff
Shera. First, Defendants argue that Shera entered a settlement agreement with Biomet that
waived any right to sell products of Biomet’s subsidiaries or future acquired companies.
However, the Court specifically rejected this argument in its order addressing Defendants’ Rule
50 motion. (DE 389 at 17). At trial, Shera testified that he understood that the agreement only
pertained to his active distributorship and had nothing to do with his retirement. (DE 371 at
159:16–18.) An agreement excluding subsidiaries in his active distributorship is unrelated to his
knowledge of underpayments occurring during his retirement.
Defendants also point to a letter sent to Shera by Biomet, which explains that Shera
would not be entitled to commissions on products, such as those produced by Arthrotek, which

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were not “merged into and became part of the Biomet product line” and which were “[d]istinct
from the Biomet product line.” (DE 392 at 10–11.) Defendants assert that this letter shows that
“Shera [] waived the ability to claim he was entitled under his Distributorship Agreement to sales
made by Arthrotek, which is sports medicine.” (Id. at 11.) However, the jury did not find Biomet
liable for failing to pay Shera commissions on sports-medicine sales. (DE 379 at 10.)
Accordingly, the argument is moot: waiving Shera’s right to payment for sports medicine would
not matter, since the jury already found he was not entitled to damages on sports medicine
products. The Court also notes that the damages which the jury did award to Shera for trauma
products were precisely those that the letter indicates should have been awarded to Shera, since
trauma products eventually merged into the Biomet product line. (DE 389 at 16 (“[I]t is rational
for the jury to conclude that the trauma products that the Distributors actively sold, which have
evolved and grown and are now sold through the subsidiary Biomet Trauma, were intended by
the parties to be included in retirement commissions, just as the orthopedic products have grown,
evolved, and are now sold through Biomet Orthopedics, on which they receive retirement
commissions.”).)
As the Court explains above, the Defendants’ argument largely boils down to the fact that
Plaintiffs could have inquired further and could have gained information that would have made
them aware that they were not being paid what they were legally entitled to. However, this is not
sufficient to show actual or constructive knowledge. Accordingly, the Court finds that
Defendants have not met their burden to show that Plaintiffs had actual or constructive
knowledge that they were entitled to commissions beyond what they were receiving.
Even if Defendants had demonstrated that Plaintiffs knew they were entitled to more
commissions than they were being paid, Defendants cannot demonstrate that there was an

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affirmative act showing Plaintiffs’ intention to relinquish that right. See BKCAP, LLC v. Captec
Franchise Tr. 2000-1, No. 3:07-CV-00637, 2010 WL 3219303, at *8 (N.D. Ind. Aug. 12, 2010)
(“[T]o constitute a waiver of legal right, there must be a clear, unequivocal and decisive act of
the party with knowledge of such right and an evident purpose to surrender it.”).
Defendants first argue that an email sent from another retired distributor, Al Plows, is an
affirmative act showing the Plaintiffs’ intention to relinquish their rights. The contents of the
email cited by Defendants read as follows:
We request written confirmation from Zimmer, that going forward Zimmer-Biomet
will continue to honor their obligation to pay override commission on any/all
reconstructive products sold in our respective territories. . . . The confirmation will
clearly state that commission will be paid on all reconstructive products sold in
Biomet, Zimmer-Medical Holdings or Zimmer-Biomet packaging . . . .
(DE 392 at 11–12) (quoting Tr. Ex. IY). The Court finds that there are two reasons that this letter
from Plows fails to constitute an affirmative act showing Plaintiffs’ intention to relinquish their
right to the commissions they were not receiving: (1) Defendants have not demonstrated that
Plows had the authority to waive Plaintiffs’ legal rights; (2) the content of Plows email does not
show an intention to waive Plaintiffs’ legal rights.
The first issue is whether Plows had the authority to bind the Plaintiffs. A waiver “must
be made by the person whose rights or remedies are to be affected.” Matter of S.L., 599 N.E.2d at
229. If Plows were an unrelated third party, then he clearly would be unable to bind the
Plaintiffs. Under Indiana law, though, “an agent acts for his principals in the same manner as
though the principals themselves had acted.” Silverstein v. Cent. Furniture Co., 162 N.E.2d 690,
701 (Ind. App. 1959) (citation omitted). Defendants argue that Plows was either acting with
actual agency or with apparent agency on behalf of the Plaintiffs when he sent this email and that
this constituted a proper waiver.

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The Defendants have failed to meet their burden to show that Plows was in an actual
agency relationship with the Plaintiffs. See Kifer v. State, 137 N.E.3d 990, 992 (Ind. Ct. App.
2019) (“One who asserts that there was an agency relationship has the burden of proving its
existence.”). Actual agency requires that three elements be shown: “(1) manifestation of consent
by the principal, (2) acceptance of authority by the agent, and (3) control exerted by the principal
over the agent.” Demming v. Underwood, 943 N.E.2d 878, 883 (Ind. Ct. App. 2011). The Court
finds that the Defendants have failed to prove the element of control. To establish control,
Defendants had to show “that the agent be subject to the control of the principal with respect to
the details of the work.” Id. at 885. Defendants assert that Plows was “appointed [by the
Plaintiffs] to send the email and [that the Plaintiffs] agreed with the contents of the message.”
(DE 392 at 12.) Defendants cite to the Plows email quoted above for support, but this email does
not demonstrate that Plows was subject to the control of Plaintiffs when he crafted this email, or
in any manner. Defendants also assert that the “Plaintiffs all individually agreed that Plows was
sending that communication on their behalf, and affirmed that his statements were correct” and
cite testimony from Plaintiffs in support of that proposition. (DE 392 at 12.) However, this too
fails to demonstrate that Plaintiffs exercised any control over Plows or the content of his
message. Accordingly, Defendants have failed to demonstrate that Plows was acting with actual
agency.
Defendants also have failed to demonstrate that Plows was acting with apparent
authority. Apparent authority “is the authority that a third person reasonably believes an agent to
possess because of some manifestation from his principal.” Sword v. NKC Hosps., Inc., 714
N.E.2d 142, 148 (Ind. 1999) (citation and quotation marks omitted). “The manifestation must be
made by the principal to a third party and reasonably cause the third party to believe that an

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individual is an agent of the principal and to act upon that belief.” Id. The manifestation “need
not be in the form of direct communications, but rather the placing of the agent in a position to
perform acts or make representations which appear reasonable to a third person is a sufficient
manifestation to endow the agent with apparent authority.” Quality Foods, Inc. v. Holloway
Assocs. Pro. Engineers & Land Surveyors, Inc., 852 N.E.2d 27, 32 (Ind. Ct. App. 2006)
(citations and quotation marks omitted).
Defendants argue that there was apparent authority because Plaintiffs were all copied “on
[Plow’s] email, and none emailed in response to disagree or object to his message.” (DE 392 at
12.) The Court does not believe that the Plaintiffs’ silence would make it reasonable for a third
person to believe that Plows had the authority to waive the Plaintiffs’ legal entitlement to
commissions. Here, the content of the message sent by Plows sought confirmation from Biomet
that they would continue to honor their obligations. The message did not explicitly waive, or
even imply they were waiving, any legal right of the Plaintiffs or seek to alter any legal
arrangements on the part of the Plaintiffs. Based on this singular email, which primarily sought a
confirmation from Biomet, it would be unreasonable to assume from the Plaintiffs’ silence that
Plows was an agent with the authority to waive their legal entitlements to commissions.
Therefore, Plows also lacked apparent authority.
Even if Plows had actual or apparent authority, Defendants’ argument fails for a more
fundamental reason: Plows’ email never voluntarily waives any legal right. Waiver may be
express or implied, but where it is implied, Indiana Courts have held that “there must be a clear,
unequivocal, and decisive act of the party showing the purpose to waive[.]” Russell v. Trustees of
Purdue Univ., 178 N.E. 180, 185 (Ind. 1931); see BKCAP, LLC v. Captec Franchise Tr. 2000-1,
No. 3:07-CV-00637, 2010 WL 3219303, at *8 (N.D. Ind. Aug. 12, 2010). This email, which

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seeks a written confirmation of Biomet’s obligations, does not demonstrate any intention by the
Plaintiffs to waive their legal right to certain commissions. Therefore, even if Plows had
authority to waive their legal rights, Defendants’ argument would still fail.
Defendants next direct the Court to a letter that Plaintiffs’ counsel sent in July of 2015
which stated that “[i]n the years following the Legacy Distributors’ retirement, Biomet ha[d]
honored its obligations, and paid commission on all products sold in the relevant territory.” (DE
392 at 13 (emphasis added).) As Plaintiffs explain in their response, rather than constituting a
waiver, this letter predates the Plaintiffs’ discovery of the extent of Biomet’s breach. (DE 393 at
16.) The letter indicates Plaintiffs’ mistaken belief that Defendants owed them commissions on
“all Biomet products sold in the relevant territories” and had been paying these commissions
(DE 175-3 at 9.) Therefore, the Court finds that the July 2015 letter also does not display the
intent of the Plaintiffs to waive any legal rights.
Defendants only raised the above two pieces of evidence in support of their argument.
Accordingly, the Court finds that Defendants have failed to show that Plaintiffs intentionally
waived their legal rights with an affirmative act.
The Court next addresses whether Defendants have demonstrated that Plaintiffs remained
silent when they had a duty to speak up. Defendants raise this argument for the first time in their
reply brief. Plaintiffs have submitted a motion to file a surreply in order to respond to this new
argument. (DE 399.) The Court grants this motion, as it responds to a new argument raised by
the Defendants that Plaintiffs did not have a chance to consider. Hoosier Env’t Council v. Nat.
Prairie Indiana Farmland Holdings, LLC, 564 F. Supp. 3d 683, 719 (N.D. Ind. 2021) (“The
court will only allow a litigant to file a surreply when it responds to a new argument, describes
some development in the law, or rests on other unique considerations.”).

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In their surreply, Plaintiffs argue that Defendants waived their “duty to speak” argument
by not raising it in their opening brief. “[A]rguments raised for the first time in [a] reply brief are
waived because they leave no chance to respond.” White v. United States, 8 F.4th 547, 552 (7th
Cir. 2021) (citations omitted); see Smith v. Metro. Prop. & Cas. Ins. Co., No. 3:20-CV-053-JDMGG, 2020 WL 5946599, at *6 (N.D. Ind. Oct. 7, 2020) (“Because [the defendant] sprung this
argument on [the plaintiff] for the first time on reply, the Court treats it as waived.”). The Court
agrees with the Plaintiffs: by not arguing there was a duty to speak in their opening brief, or even
mentioning duty, Defendants have now waived their ability to do so.
In their response to the surreply, Defendants argue that their reply brief “explained that
its position had always been that ‘[w]here plaintiff has actual knowledge or even the means of
knowledge, he has a duty to speak up.’” (DE 401 at 2.) Defendants then include a bullet point list
of seven quotes pulled from their opening brief they say demonstrate the general “theme” of duty
to speak present in their opening brief. (Id.) Rather than help their case, this list illustrates the
confused, often incorrect, opening brief that the Defendants provided to the Court.
Five of the bullet points are quotations from the Defendants’ argument concerning
laches, which is a legal doctrine separate from the doctrine of waiver, and would not provide any
notice to the Plaintiffs that the Defendants were arguing there was a duty to speak. (Id. ¶ 4(c)–
(g).) The doctrine of laches concerns protecting Defendants from an “unreasonable, prejudicial
delay in commencing suit.” SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prod., LLC,
137 S. Ct. 954, 960 (2017) (citation omitted); see also 1 D. Dobbs, Law of Remedies § 2.3(5), p.
89 (2d ed. 1993) (Dobbs) (“The equitable doctrine of laches bars the plaintiff whose
unreasonable delay in prosecuting a claim or protecting a right has worked a prejudice to the

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defendant.”). Each of these five bullets address delay in the assertion of rights by commencing
suit, not a duty to speak. (DE 401 ¶ 4(c)–(g).)
Defendants’ conflation of distinct legal doctrines is not an isolated incident. For example,
in their reply, Defendants assert that “Indiana law is resoundingly and abundantly clear that
inaction and silence can equitably bar a claim, and silence and inaction are the hallmarks of the
defenses of laches, waiver, and estoppel.” (DE 397 at 5 (emphasis added).) Despite the
confidence that Defendants have in that assertion, Indiana law actually indicates that silence
alone is never sufficient to demonstrate waiver, and is not even required to demonstrate waiver.
Pohle v. Cheatham, 724 N.E.2d 655, 659 (Ind. Ct. App. 2000) (“However, waiver is an
affirmative act and mere silence, acquiescence or inactivity does not constitute waiver unless
there was a duty to speak or act.”); Armbruster v. Tran, 179 N.E.3d 1046 (Ind. Ct. App. 2021)
(same); Ryan v. Janovsky, 999 N.E.2d 895, 901 (Ind. Ct. App. 2013) (same); 2444 Acquisitions,
LLC v. Fish, 84 N.E.3d 1211, 1217 (Ind. Ct. App. 2017) (same); Forty-One Assocs., LLC v.
Bluefield Assocs., L.P., 809 N.E.2d 422, 428 (Ind. Ct. App. 2004) (same).
Another one of Defendants’ bullet points is to a proposition asserted in their opening
brief, which reads: “[a]cquiescence and waiver both apply where a statement was made in a
party’s presence which he did not deny, if the circumstances would have, as here, called for a
denial. Pierce v. Goldsberry, 35 Ind. 317, 321 (1871).” (DE 401 ¶ 4(a).) Pierce is one of the few
cases that Defendants rely on when describing Indiana’s law of waiver in their opening brief.
However, the Court does not believe that this quotation from Pierce provides any notice to the
Plaintiffs that Defendants were arguing there was a duty for Plaintiffs to speak. Rather, the
citation to Pierce leaves the reader befuddled, asking themselves why Defendants would
repeatedly cite a case which has absolutely nothing to do with the doctrine of waiver. Defendants

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cite this case in their opening brief (DE 392 at 4), in their reply brief (DE 397 at 2), and in their
response to Plaintiffs surreply (DE 401 ¶ 4(a)). As explained above, though, Pierce is a case
addressing when the silence of an opposing party is admissible evidence to show adoption of a
statement. It does not concern waiver of a legal right, does not discuss a duty to speak up, and
therefore would not put Plaintiffs on notice of a need to discuss duty to speak in their response. 5
Defendants final bullet point cites a portion of their opening brief which asserts that
“Plaintiffs’ willful ignorance and silence until 2016 was an inexcusable failure to speak up.” (DE
401 ¶ 4(b).) Defendants claim that this is “synonymous with asserting that Plaintiffs had a duty
to speak up” and provided Plaintiffs with sufficient notice. (DE 401 ¶ 5.) However, this line is
not synonymous with providing an argument that Plaintiffs had a duty to speak up. First, the line
is not an argument, it is a conclusory statement. Additionally, rather than discussing a duty to
speak, the line is instead indicative of Defendants’ incorrect understanding of the doctrine of
waiver. Throughout their opening brief, Defendants imply that mere silence in this circumstance
is sufficient to prove waiver and that no duty to speak is required. For example, Defendants write
concerning Plaintiff Tornquist:
As of 1996, Tornquist had written confirmation that he would not be paid on ‘all
products,’ yet did not dispute his commission payments until 2016. Accordingly,
he has waived his right to raise this dispute now.

Defendants consistently misread cases and assert that they stand for propositions that they don’t support. For
example, Defendants cite in their reply brief to Hamlin v. Steward for the proposition that “waiver can be shown by
omissions of a party to a contract where there was a duty to speak.” 622 N.E. 2d 535 (Ind. Ct. App. 1993); (DE 397
at 2.). Even though Hamlin touches on waiver and states that it might be implied from omissions by a party to a
contract, Hamlin never discusses a duty to speak. Id. at 538. Another example is Defendants citing in their reply
brief to Hellyer Communications, Inc. v. WRC Properties, Inc., to support the proposition that there is a “duty to
speak [when] Plaintiffs [have] access to all the information.” 969 F. Supp. 1150, 1559 (S.D. Ind. 1997); (DE 397 at
2.). But Hellyer does not support this proposition. The Plaintiff in Hellyer had a duty to speak up and notify the
landlord of problems with the premises because that was in his contract. Hellyer Communications, Inc., 969 F.
Supp. at 1559 (“Hellyer had a duty to inspect [the] premises . . . and to notify WRC of any problems [pursuant to]
Initial Lease Section 2.03.”).
5

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(DE 392 at 9.) Or, when summarizing their argument concerning waiver, Defendants write the
following:
Plaintiffs could have easily identified that they were not being paid on certain
product categories, and had actual knowledge that their Long-Term Commissions
would exclude certain products categories . . . Plaintiffs now want to take advantage
of this willful blindness, and their silence since the 1990s. Plaintiff Hess best
explained why the Plaintiffs took no actions: “the checks kept going up.” In other
words, the Plaintiffs knew or could have known exactly what they were or were not
being paid on, but because their income kept increasing, they simply did not care.
This constitutes waiver and acquiescence.
(Id. at 11.) Defendants’ theory appears to have been that silence under these circumstances was
sufficient to constitute waiver. But Defendants never articulate why silence under these
circumstances constitutes a waiver. Is it because they believe there was a duty to speak up? If so,
why was there a duty to speak under these circumstances? The entirety of that argument is
missing in their opening brief.
Given that Defendants failed to argue duty to speak in their opening brief, it is waived.
There are a few reasons why this finding of waiver is particularly justified in this circumstance.
First, Defendants had an extended period of time to refine their arguments concerning waiver.
Defendants raised this affirmative defense in their answer in March of 2017. (DE 50 at 36.) It is
reasonable to expect in the five years since, that Defendants would have sufficient time to do the
necessary legal research and develop this argument fully. See Booking v. General Star
Management Co., 254 F.3d 414, 418 (2d Cir. 2001) (finding that waiver was warranted because
“by the time an appellate brief is drafted, a case has been percolating in the federal courts for
long enough for the appellant’s counsel to have selected the arguments that he will rely upon,
[so] it is therefore reasonable to expect that he will include all of these arguments in his opening
brief”). Furthermore, the Court believes that considering such arguments where they are not
raised in the opening brief would only encourage briefing which omits large chunks of the

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applicable law and risks the Court providing an ill-advised opinion. See Herbert v. National
Academy of Sciences, 974 F.2d 192, 195–197 (D.C. Cir. 1992) (“To consider an argument
discussed for the first time in reply . . . would risk the possibility ‘of an improvident or illadvised opinion,’ given our dependence as an Article III court on the adversarial process for
sharpening the issues for decision.”). Additionally, it is manifestly unfair to the Plaintiffs for
Defendants not to have raised this argument in their opening brief since this gave them no
opportunity to address the Defendants’ argument in their response. LeSEA, Inc. v. LeSEA Broad.
Corp., 379 F. Supp. 3d 732, 737 (N.D. Ind. 2019) (“Arguments raised for the first time in a reply
are fundamentally unfair because the other side has no opportunity to respond, and they are
properly disregarded by a court as waived.”).
Accordingly, because Defendants have failed to show knowledge of a legal right and an
intention to relinquish that legal right (either through an affirmative act or silence alongside a
duty to speak), the Court finds that Defendants have not met their burden of proof to demonstrate
waiver.
(b) Laches
Defendants next argue that the doctrine of laches bars Plaintiffs’ claims, asserting that “if
Plaintiffs’ claims are not barred by laches, it is difficult to conceive of when the defense of
laches could ever apply.” (DE 392 at 13.) The Court disagrees.
Laches is an equitable doctrine. SMDfund, Inc. v. Fort Wayne–Allen County Airport
Auth., 831 N.E.2d 725, 728 (Ind. 2005). The doctrine recognizes that “[i]ndependently of any
statute of limitation, courts of equity uniformly decline to assist a person who has slept upon his
rights and shows no excuse for his laches in asserting them.” Id. at 729 (citations and quotation
marks omitted). Laches is comprised of three elements: (1) inexcusable delay in asserting a

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known right; (2) an implied waiver arising from knowing acquiescence in existing conditions;
and (3) a change in circumstances causing prejudice to the adverse party. Shafer v. Lambie, 667
N.E.2d 226, 231 (Ind. Ct. App. 1996). “The mere passage of time is insufficient to establish
laches. . . .” Pickett v. Pickett, 470 N.E.2d 751, 754 (Ind. Ct. App. 1984). Rather, the delay must
be an unreasonable delay and prejudice the opposing party. Id. However, because laches is a
limitation upon equitable relief, and breach of contract is a legal claim, laches alone does not
“operate to bar the claim when the applicable limitations period has not run.” Town of New
Chicago v. City of Lake Station ex rel. Lake Station Sanitary Dist., 939 N.E.2d 638, 652 (Ind. Ct.
App. 2010). Mere laches, “short of the statutory period of limitations and not connected with
such facts as may amount to an estoppel, is not a bar to an action at law on the contract.” Id.
The Court previously explained why the statute of limitations has not run on Plaintiffs’
claims in its order addressing the parties’ motions for summary judgment (DE 210) and its order
addressing the parties’ motions in limine prior to trial (DE 301). The payments to Plaintiffs by
Biomet were made in installments, and under Indiana law, the statute of limitations began
running separately for each alleged underpayment. At the summary judgment stage, the Court
explained that Plaintiffs’ claims could not be barred “in whole” and “at worst, [the statute of
limitations] could preclude the Distributors from seeking underpayments that accrued prior to the
applicable limitations period.” (DE 210 at 17.) When addressing the parties’ motions in limine,
the Court explained that based on the time they entered their original distributorship agreements
(prior to September 1, 1982) five of the plaintiffs had 20-year statute of limitations, and none of
their damages could have accrued outside that period. (DE 301 at 12–13.) One plaintiff, Shera,
conceded that his contract was subject to a 10-year statute of limitations since he entered the
original distributorship agreement after September 1, 1982, and consented to foregoing any

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damages accruing more than ten years before suit. (Id.) Therefore, the statute of limitations has
not run on any of the Plaintiffs’ claims and the limitation on Shera’s damages was resolved prior
to trial. 6
In this situation, where the statute of limitations has not run, laches “may bar a plaintiff’s
claim even though the applicable statute of limitations has not yet expired if the laches are of
such character as to work an equitable estoppel (which contains the additional element of
reliance by the defendant).” Hellyer Commc’ns, Inc. v. WRC Properties, Inc., 969 F. Supp. 1150,
1157 (S.D. Ind. 1997) (citations omitted); see also Siddall v. City of Michigan City, 485 N.E.2d
912, 916 (Ind. Ct. App. 1985) (“The doctrine of laches may bar the party’s right to assert a claim
before the running of the applicable statute of limitations if the laches are of such character as to
work an equitable estoppel which contains the additional element of reliance by the defendant.”);
Habig v. Bruning, 613 N.E.2d 61, 65 (Ind. Ct. App. 1993).
Therefore, in order to prove their laches defense, it had to be of such a nature as to work
an equitable estoppel and Defendants had to prove four elements: (1) inexcusable delay in
asserting a known right; (2) an implied waiver arising from knowing acquiescence in existing
conditions; (3) a change in circumstances causing prejudice to the adverse party; and (4) reliance
by the defendant. The Court finds that Defendants have failed to meet their burden on the initial
three elements.
The Court first finds that Defendants have failed to show an inexcusable delay by
Plaintiffs in asserting a known right. Defendants largely repeat the same argument they raised

Defendants make the argument that “at a minimum, the Distributorship Agreement is akin to an installment
contract, and Plaintiffs should not be entitled to recover damages which allegedly accrued outside of the statute of
limitations period.” (DE 392 at 16.) The Court agrees that Plaintiffs should not receive damages from outside the
statute of limitations period. As explained above, though, Plaintiffs were not awarded any damages outside the
statutory period.

6

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when discussing knowledge in the context of waiver: that because Plaintiffs could have
determined they were not being paid what they were owed by Biomet, they had actual or
constructive knowledge of these underpayments. (DE 392 at 14.) However, when it comes to
laches, this argument is even more unconvincing. A party asserting that a waiver has occurred
may do so by showing actual or constructive knowledge of a legal right and intention to
relinquish that right. See O.K. Sand & Gravel, Inc. v. Martin Marietta Corp., 786 F. Supp. 1442,
1447 (S.D. Ind. 1992) (examining Plaintiff’s actual or constructive knowledge when discussing
waiver); see also 27 Williston on Contracts § 70:43 (4th ed.) (Waiver requires either “actual or
constructive knowledge of the existence of such right . . . .”). However, when proving laches,
Indiana law is clear that “the doctrine of laches cannot be predicated upon constructive
knowledge.” Perry v. State, 512 N.E.2d 841, 844 (Ind. 1987); see also Angel v. Powelson, 977
N.E.2d 434, 446 (Ind. Ct. App. 2012) (“We acknowledge that our Court has stated that
knowledge of a right, for the purposes of laches, cannot be based merely on constructive
knowledge.”).
Even if constructive knowledge were a permissible way to prove laches, Defendants’
argument would still fail. Similar to their argument when discussing waiver, Defendants’ again
focus on what Plaintiffs hypothetically could have done. But this does not address what
Plaintiffs, in fact, knew or what they should have reasonably done. Furthermore, as previously
explained, the commission statements prior to 2007 failed to include descriptions of what items
they were being paid, meaning there was nothing in those commission statements which would
have put them on notice that they were not being paid for products they should have been
receiving commissions on. Additionally, the commission statements after 2007 failed to include
descriptions of what they were not being paid on.

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Instead, it appears that Plaintiffs first discovered that they were being paid less than they
were entitled in 2015. (Hess Testimony, DE 367 at 43:5–8, 48:11–19.) Shortly prior to the
Zimmer Biomet merger, that Plaintiffs were approached by Biomet with a buyout offer and
secured counsel to assist in those discussions. (Id. at 31:10–32:7.) Counsel, once procured,
discovered that they were being paid less than owed and, on April 4, 2016, this case was filed.
(Id. at 48:16–20; DE 1.) Given that there was less than a year between that discovery and the
filing of the suit, the Court finds that this was not an unreasonable delay. Indiana courts have
refused to find unreasonable delay with comparable time periods. Compare Bryant v. State, 405
N.E.2d 583, 585 (Ind. App. 1980) (finding that eighteen months did not constitute unreasonable
delay in instituting a proceeding), with Wienke v. Lynch 407 N.E.2d 280 (Ind. App. 1980)
(finding that a delay of nearly five years was unreasonable).
For similar reasons, the Court finds that Defendants have also failed to demonstrate an
implied waiver from knowing acquiescence in existing conditions. Because Defendants have not
shown that Plaintiffs knew about the underpayments prior to 2015, they have also failed to show
that, by failing to act on those rights, Plaintiffs intended to relinquish them. Metro. Dev. Comm’n
of Marion Cnty. v. Schroeder, 727 N.E.2d 742, 749 (Ind. Ct. App. 2000) (“[W]aiver is the
intentional relinquishment of a known right.”) Accordingly, an implied waiver may not be found.
Even assuming Defendants had shown the first two elements, they have failed to meet
their burden to demonstrate prejudice as a result of the delay. “The party seeking the application
of laches to bar a claim must have been prejudiced by a change in condition due to the delay.”
Shriner v. Sheehan, 773 N.E.2d 833, 846 (Ind. Ct. App. 2002) (citation omitted). One type of
prejudice that will support a laches defense comes from loss of evidence or the unavailability of
important witnesses. See Stiefel v. Farmers’ State Bank, 168 N.E. 30, 33 (Ind. App. 1929) (“If a

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party voluntarily delays asserting a known right, and, by reason of such delay, evidence of the
matter in controversy has been lost, or so obscured that the court is practically precluded from
ascertaining the truth of the matter . . . a court of equity . . . will hold that the delay in asserting
the right will bar a recovery on the ground of laches.”). Defendants argue that, as a result of the
alleged delay, witnesses and evidence were unavailable making it ‘“exceedingly difficult’ for
them to defend themselves against Plaintiffs’ claims.” (DE 392 at 16.) Specifically, Defendants
argue that the delay precluded Dane Miller, who passed away in 2015, and Jerry Ferguson, who
had severe health issues, from testifying. (Id.) Miller and Ferguson were the founders of Biomet
and helped negotiate the distributorship agreements. Defendants also argue that there were no
emails in the 1980s, that because of the delay no letters existed, and that documents had been
deleted since the distributorship agreement was executed in the course of ordinary business. (Id.)
First, it is entirely speculative whether Miller or Ferguson’s testimony would have
materially altered the Defendants’ position in this case. Shriner, 773 N.E.2d at 846 (“The
prejudice element requires that [the defendants] materially altered their position due to
[plaintiff’s] delay . . . .”); Est. of Gerke v. Est. of Gerke, 580 N.E.2d 972, 977 (Ind. Ct. App.
1991) (“[T]he prejudice element requires that [defendant] materially altered its position due to
[the] delay.”). Hann was the Defendants’ sole witness and provided testimony regarding the
interpretation of the contract that arguably helped the Plaintiffs, testifying that in addition to the
actual products that the Plaintiffs were selling on the day they retired, if there was a “natural
evolution” of those products, then the Plaintiffs were entitled to retirement commissions on
those. (DE 371 at 19:9–15.) Hann also testified that the Plaintiffs were selling trauma products
on the day their distributorships terminated. (DE 369 at 125:5–8.) Hann had a close relationship
with Miller in his role as general counsel and Miller, on a “number of occasions,” would discuss

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his intentions and interpretations regarding the Long-Term Commission Program. (Id. at 53:3–9.)
Given the close relationship Hann had with Miller, who was one of the principal architects of the
deal, and that Hann’s testimony regarding the interpretation of the contract arguably helped
Plaintiffs, the Court does not believe it is likely that the introduction of Miller or Ferguson’s
testimony would have materially altered Defendants’ position.
Plaintiffs also point out that Defendants had an array of other Biomet executives who
served contemporaneously with Miller and Ferguson who they chose not to call as witnesses.
Plaintiffs direct the Court to two specific examples. First, the parties deposed Gary England, who
began at Biomet in 1981 and remained there until 2007. (DE 393-2). England provided
deposition testimony that he assumed that plaintiffs were receiving in retirement commissions on
products they sold while they were active distributors. (Id. at 10.) The parties also deposed
Gregory Hartman, who joined Biomet in 1984 and who also recalled having conversations with
Miller. (DE 261-4.) Hartman testified that his understanding of the distributorship agreement was
that after the distributors retired, they would continue to receive commissions based on the
Biomet products “they sold in their territory at the time they were salesman” and also new
products developed after the retirement “depend[ing] on the type of product.” (DE 261-4 at
41:3–42:7.) Mr. Hartman’s understanding of the retirement provision was also based on
discussions with Miller. Defendants did not call these witnesses at trial, even though both men
had close relationships with Miller and recalled how the retirement commissions were supposed
to work. That there were other available witnesses who worked with Miller beyond Hann, who
were also familiar with the retirement provisions, further demonstrates that Defendants were not
prejudiced by any delay. Defendants had multiple witnesses who could testify regarding the
meaning of the clause in issue. They made the strategic choice not to call them.

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Defendants next argue that they were prejudiced at trial due to a lack of documentation
remaining from the period the distributorship agreement was entered. Defendants assert that
relevant documents have been destroyed in the ordinary course of business, that letters no longer
exist, and that “[t]here were no emails in the 1980s when these agreements were first executed.” 7
(DE 392 at 16.) Defendants claim that this loss of documentation caused the defense to be
“unable to ‘really articulate and tell [its] story and defend [itself].’” (Id. at 16–17 (quoting Hann
testimony, DE 369 at 75:2–11.)) There are two reasons why this explanation is deficient to meet
Defendants’ burden.
First, it is entirely speculative whether any relevant contemporaneous documents ever
existed. In order to make out a claim of prejudice, there must actually be evidence “submitted . . .
in support of its claims of prejudice.” Nature Conservancy v. Wilder Corp. of Delaware, 656
F.3d 646, 652 (7th Cir. 2011). Hann did testify that certain documentation that “normally
[would] be available in a case like this” had it been filed within a couple of years of the events
was not available. (DE 369 at 74:11–20.) However, that documents normally would be available
in such lawsuits is not evidence that relevant documents outside the distributorship agreement
actually existed. In fact, Hann later testified that he was not aware of a single draft of the
distributorship contract that was exchanged between Biomet and the Plaintiffs, (Id. at 80:5–9),
and that he also had never seen any letters between the parties in connection with negotiation of
distributorship agreements (Id. at 149:6–20). Defendants have failed to point to any evidence
supporting that relevant documents, no longer available, ever existed. Therefore, they have failed
to prove prejudice.

Hann admitted in his testimony that there was no email in use back in 1980. (DE 369 at 78:19–21.) Therefore, the
fact that there are no emails now is not a result of any delay, but rather because of the fact that these emails never
existed in the first place.

7

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In their response, Defendants argue that this case is similar to Smith v. Caterpillar, Inc.,
338 F.3d 730 (7th Cir. 2003), where the Seventh Circuit affirmed a district court’s finding that
laches barred the plaintiff’s claim. However, rather than supporting Defendants’ argument, Smith
actually illustrates why Defendants’ prejudice argument fails. In Smith, the district court granted
summary judgment after the Defendants filed “affidavits of relevant witnesses verifying . . .
information concerning the missing or destroyed personnel records.” Smith, 338 F.3d at 733. The
Seventh Circuit affirmed, finding the Defendant had demonstrated prejudice by pointing to
certain critical documents, such as “performance reviews,” “attendance records,” and “materials
from training seminars,” which had been inadvertently lost or intentionally destroyed as part of
routine record maintenance. Id. at 735. This conclusion was only reached because Caterpillar had
“submitted evidence” that “key documents necessary to its defense had been destroyed as part of
routine record maintenance.” Nature Conservancy, 656 F.3d at 652 (distinguishing Caterpillar
and affirming a denial of a laches defense). In the instant case, though, Defendants have not
directed the Court to any evidence supporting that key documents actually existed.
This leads to the second reason that Defendants’ documentation argument fails: the
defendants do not provide a sufficiently specific explanation about how the destruction of these
documents prejudiced them. Conclusory statements which merely assert a party has suffered
evidentiary prejudice from the loss of documentary evidence is insufficient to demonstrate
prejudice. See PSN Illinois, Inc. v. Ivoclar Vivadent, Inc., 398 F. Supp. 2d 902, 911 (N.D. Ill.
2005) (citing Meyers v. Asics Corp., 974 F.2d 1304, 1308 (Fed. Cir. 1992)). Defendants argue
that because contemporaneous documents no longer exist, they are “unable to ‘really articulate
and tell [its] story and defend [itself].’” (DE 392 at 17 (quoting Hann testimony, DE 369 at 75:2–
11.)) In Smith, the Defendant specifically identified critical documents, like performance

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reviews, attendance reviews, and materials from training seminars, which were key to their
defense. Rather than identifying specific documents and explaining prejudice, Defendants here
merely assert that the general category of “contemporaneous documents” would have helped to
“tell [its] story and defend [itself].” These type of vague and conclusory arguments are
insufficient to make a showing of prejudice. See, e.g., Integrated Cards, L.L.C. v. McKillip
Indus., Inc., No. 06 C 2071, 2008 WL 3286981, at *5 (N.D. Ill. Aug. 8, 2008) (“Conclusory
statements that there are missing witnesses, that witnesses’ memories have lessened, and that
there is missing documentary evidence, is not sufficient [to show prejudice for a laches
defense].”); Melendres v. Arpaio, 154 F. Supp. 3d 845, 854 (D. Ariz. 2016) (holding that laches
could not bar a claim where the party “speculates that perhaps documents once existed [and] are
now lost, but [the party] does not identify what documents are missing or how their loss has
[caused] prejudice”); Adidas Am., Inc. v. Payless Shoesource, Inc., 540 F. Supp. 2d 1176, 1183
(D. Or. 2008) (holding that laches could not bar a claim where the Defendant failed to identify
the specific evidence and failed to explain how this evidence prejudiced them).
The Court does not examine reliance, as the above clearly demonstrates that Defendants
have failed to meet three essential elements of laches.
(c) Equitable Estoppel
Next, the Defendants argue that Plaintiffs’ claims should be equitably estopped. 8 “The
party claiming equitable estoppel must show its (1) lack of knowledge and of the means of
knowledge as to the facts in question, (2) reliance upon the conduct of the party estopped, and
8
There is some debate between the parties about whether equitable estoppel in this context is to be considered
separately from the laches affirmative defense. Defendants analyze equitable estoppel separately from laches;
Plaintiffs do not. Since it is clear that Defendants have not demonstrated an equitable estoppel, even if analyzed
separately, the Court analyzes it separately.

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(3) action based thereon of such a character as to change his position prejudicially.” Money Store
Inv. Corp. v. Summers, 849 N.E.2d 544, 547 (Ind. 2006). “Equitable estoppel may arise from
silence or acquiescence as well as from positive conduct.” City of New Albany v. Cotner, 919
N.E.2d 125, 133–34 (Ind. Ct. App. 2009). However, Indiana law is clear that “silence will not
form the basis of an estoppel unless the silent party has a duty to speak.” Id. at 134; Mechling v.
State, 16 N.E.3d 1015, 1017 (Ind. Ct. App. 2014); Town of New Chicago v. City of Lake Station
ex rel. Lake Station Sanitary Dist., 939 N.E.2d 638, 653 (Ind. Ct. App. 2010); Kruse v. Nat’l
Bank of Indianapolis, 815 N.E.2d 137, 149 (Ind. Ct. App. 2004).
The Court has previously discussed the failure of the Defendants to discuss duty to speak
in their opening brief. See supra pp. 18–23. “[A]rguments raised for the first time in [a] reply
brief are waived because they leave no chance to respond.” White v. United States, 8 F.4th 547,
552 (7th Cir. 2021) (citations omitted). Accordingly, because Defendants have waived their
argument concerning Plaintiffs’ duty to speak, they have failed to establish equitable estoppel.
Furthermore, even had Defendants shown a duty to speak, if the person sought to be
estopped does not have actual or constructive knowledge of the facts, then they may not be
estopped. See Liberty Nat. Bank & Tr. Co. v. Payton, 602 N.E.2d 530, 534 (Ind. Ct. App. 1992)
(“Equitable estoppel is established when there is a false representation or concealment of
material facts with actual or constructive knowledge; to one without knowledge or reasonable
means of knowledge of the true facts with the intent that he rely upon it; and, the second party
relied to his detriment.”); Alber v. Standard Heating & Air Conditioning, Inc., 476 N.E.2d 507,
510 (Ind. Ct. App. 1985) (reciting rule that concealment of “material fact [must be made] with
actual or constructive knowledge”). As discussed earlier, Defendants failed to show that

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Plaintiffs had actual or constructive knowledge that they were owed more commissions than they
had been receiving. See supra pp. 8–14.
Defendants have therefore failed to prove their affirmative defense of equitable estoppel.
Accordingly, because Defendants have failed to prove any of their affirmative defenses, their
motion for judgment in their favor is denied.
(2) Motion for Prejudgment Interest
The Court next addresses Plaintiffs’ motion for an award of prejudgment interest. (DE
384.) The purpose of awarding prejudgment interest is to compensate a plaintiff for the delay in
receiving money it should have received earlier. See Frey v. Hotel Coleman, 903 F.3d 671, 682
(7th Cir. 2018) (“Courts award prejudgment interest because ‘compensation deferred is
compensation reduced by the time value of money,’ and only prejudgment interest can make the
plaintiff whole.”). Under Indiana law, “an award of prejudgment interest in a contract action is
warranted if the amount of the claim rests upon a simple calculation and the terms of the contract
make such a claim ascertainable.” Noble Roman’s, Inc. v. Ward, 760 N.E.2d 1132, 1140 (Ind. Ct.
App. 2002). The ascertainable standard references the amount of damages, not liability for those
damages, as “[t]he trier of fact need always exercise its judgment to determine the liability for
damages; but, prejudgment interest is proper where the trier of fact need not exercise its
judgment to assess the amount of damages.” City of Indianapolis v. Twin Lakes Enterprises, Inc.,
568 N.E.2d 1073, 1087 (Ind. Ct. App. 1991); see also Five Star Roofing Sys., Inc. v. Armored
Guard Window & Door Grp., Inc., No. 21A-PL-1964, 2022 WL 2070520, at *12 (Ind. Ct. App.
June 9, 2022) (“[T]he ascertainable standard is in reference to the amount of damages as
distinguished from the liability for those damages.”); Meridian Mut. Ins. Co. v. Majestic Block &
Supply, Inc., 1 N.E.3d 173, 182 (Ind. Ct. App. 2013) (same). When the amount of damages are

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the subject of a good faith dispute, an award of prejudgment interest is improper. Woodward v.
Heritage Const. Co., 887 N.E.2d 994, 1002 (Ind. Ct. App. 2008). If prejudgment interest is
awarded, an interest rate of 8% applies if there is no contract providing for a different interest
rate. Song v. Iatarola, 76 N.E.3d 926, 939 (Ind. Ct. App. 2017) (“The current interest rate is 8%
when there is no contract by the parties specifying a different interest rate.”); Ind. Code § 24-4.61-101.
Defendants have conveniently forgotten the difference between determining liability for
damages and determining the amount of damages. They argue that because there was an
“ambiguity [in the Distributorship Agreement] to be resolved by the jury” that the scope of the
damages as to each Plaintiff was “inherently uncertain.” (DE 388 at 3.) Defendants point to two
ostensibly “analogous” cases: (1) Haggarty v. Haggarty, 2021 WL 3627268, Cause No. 20ADC-1877 (Ind. Ct. App. Aug. 17, 2021) and (2) Kummerer v. Marshall, 971 N.E.2d 198 (Ind. Ct.
App. 2012). However, in both of those cases, the judge acted as the trier of fact and exercised
discretion not only in finding liability, but also in determining the amount of damages. In
Haggerty, for instance, because the contract at issue only indicated that the Plaintiff would be
owed “ordinary living expenses,” prejudgment interest was not allowed because the trial court
had to “exercise its discretion to determine the amount that should have been deposited each
month to cover ordinary living expenses.” Haggarty, 176 N.E.3d at 250 (emphasis added).
Meaning, prejudgment interest was disallowed because the trial court had to exercise discretion
determining the amount of damages, not liability. Similarly, in Kummerer, because the amount
of the attorney fee at issue depended on a reasonableness determination, this “necessarily
involved the court’s judgment in order to assess the damages” and prejudgment interest was not
allowed. Kummerer, 971 N.E.2d at 202 (noting that “[t]he award of prejudgment interest is

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considered proper when the trier of fact does not have to exercise judgment in order to assess the
amount of damages”). Defendants’ argument mistakes exercising discretion in determining
liability, which does not bar an award prejudgment interest, with exercising discretion to
determine the amount of damages, which does bar awarding prejudgment interest. Other courts
in this district have described this type of argument, which confuses exercising discretion in
finding a defendant liable with exercising discretion when determining the amount of damages,
as “seriously contort[ing] the applicable legal standard for awarding prejudgment interest.”
BKCAP, LLC v. Captec Franchise Tr. 2000-1, No. 3:07-CV-637, 2011 WL 4916573, at *3 (N.D.
Ind. Oct. 14, 2011).
Here, once liability was found, damages could be calculated using a simple mathematical
formula. Plaintiffs were entitled to a certain percentage under the distributorship agreement,
which was either 1.25% or .5% of “net sales” depending on annual income. The jury found that
Defendants breached the contracts by failing to pay on trauma and sports-medicine products,
except for Shera, who Defendants only failed to pay on trauma products. Plaintiffs had a
damages expert, Mr. Soward, apply a contractual formula to compute a damages award. Soward
calculated the damages for each plaintiff by using the retirement commission rate above (either
1.25% or .5% of “net sales”). (DE 373 at 152:21–153:4.) If a plaintiff was in a partnership and
split their fees, then this would be split in half. (Id. at 153:9–11.) Defendants did not introduce
any expert to rebut these calculations and, in their closing, stated “we don’t challenge the human
calculator’s math[.]” (DE 376 at 92:8–10 (emphasis added).) The jury then awarded damages on
the trauma and sports medicine products in an amount equal to the damages provided by

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Sowards’ simple, mathematical calculations. 9 Because damages could be ascertained by the jury
in a simple mathematical computation, without an exercise of discretion, it is mandatory to
award prejudgment interest. Hayes v. Chapman, 894 N.E.2d 1047, 1055 (Ind. Ct. App. 2008)
(“Once it appears that the damages may be ascertained with reasonable precision, an award of
prejudgment interest is mandatory.”). Here, Plaintiffs have included an affidavit from Sowards,
which provides the prejudgment interest owed to each Plaintiff through October 20, 2021. (DE
384-1.) Sowards calculated the prejudgment interest by using a daily “rate of 0.0219% (8%
divided by 365 days) multiplied the number of days between the accrual date (established
utilizing a mid-period convention) and October 20, 2021.” (DE 384-1 ¶ 6.)
Defendants dispute the accrual date and argue that, even if the Court awards prejudgment
interest, it should limit the award to interest accruing on or after July 6, 2018. Under Indiana law,
prejudgment interest is “computed from the time the principal amount was demanded or due.”
Song v. Iatarola, 76 N.E.3d 926, 939 (Ind. Ct. App. 2017); see also Ind. Code § 24-4.6-1-103(b).
Defendants argue that because Plaintiffs first demanded specific payment for trauma and sports
products on July 6, 2018, no prejudgment interest can be awarded prior to that day and that
“[p]rior to that date, damages were completely theoretical[.]” (DE 388 at 6.) This argument fails
to address that Biomet was obligated to pay retirement commissions under the contract in
installments. As the Court noted in its summary judgment opinion, each “commission[] payment
at issue here became due over time in installments.” (DE 210 at 17 (emphasis added).) Therefore,

Defendants argue that the jury relied on its judgment in awarding only damages on the trauma product category to
Shera. However, Defendants were only liable to Shera on the trauma product category. Therefore, by awarding
damages equal to Sowards’ calculation for trauma products alone, the jury simply accepted Sowards’ simple
mathematical computations.
9

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because the principal was due on the schedule of installments, prejudgment interest was to be
computed from the date each installment was due to Plaintiffs.
Finally, Defendants argue that awarding damages would be “extraordinarily inequitable
under these circumstances.” (DE 388 at 4.) This argument fails for two reasons. First, Defendants
fail to point to any case that allows for an equitable defense to be used in this context. “Once it
appears that damages can be ascertained with reasonable precision, an award of prejudgment
interest is mandatory.” Dana Companies, LLC v. Chaffee Rentals, 1 N.E.3d 738, 751 (Ind. Ct.
App. 2013) (citation omitted) (emphasis added). Without citing any law that an equitable defense
is allowed in this context, the argument is waived. See United States v. Berkowitz, 927 F.2d
1376, 1384 (7th Cir. 1991) (“[P]erfunctory and undeveloped arguments, and arguments that are
unsupported by pertinent authority, are waived . . . .”). Second, Defendants again argue that they
should not be punished for Plaintiffs’ silence for multiple decades and should not be awarded
prejudgment interest for this time period when they were unaware that Plaintiffs would
eventually make these claims. (DE 388 at 4.) The Court has already explained why Defendants’
laches and equitable estoppel arguments have failed. See supra pp. 23–34. The explanation from
the Court in those sections equally applies here.
Accordingly, the Court finds Defendants owe prejudgment interest to Plaintiffs in line
with Soward’s computations through October 20, 2021, as provided for in Exhibit A. (DE 3841.) Additionally, Defendants are required to pay prejudgment interest on sales of products
accruing after October 20, 2021, and on the sales of those products for which data was
unavailable, but on which Defendants were liable. The Court will therefore allow the Plaintiffs’
expert, Sowards, to supplement his calculations to include all interest accruing through the entry
of final judgment.

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(3) Rule 11 Sanctions
The Court wishes to address a separate issue, which it raises on its own accord.
Throughout their briefing, defense counsel have repeatedly conflated areas of the law, incorrectly
described case law, and put forth underdeveloped arguments. The Court believes that the
arguments defense counsel puts forth are sanctionable.
Under Federal Rule of Civil Procedure 11(b), a lawyer, by presenting the Court with a
written paper, certifies that “to the best of the person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other
legal contentions are warranted by existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law[.]” If a court determines that
Rule 11(b) has been violated, that court may impose an appropriate sanction on any attorney or
law firm that violated the rule and is responsible for the violation. Fed. R. Civ. P. 11(c)(1). A
court is allowed to “impose sanctions sua sponte[.]” Johnson v. Cherry, 422 F.3d 540, 551 (7th
Cir. 2005). However, in imposing these sanctions, the court “must give the offending party
notice of its intent to do so and the opportunity to be heard.” Id. This notice must describe the
“specific conduct for which [the parties are] potentially subject to sanctions.” Id. at 551–552.
The court may impose Rule 11 sanctions on a party for “making arguments . . . that are frivolous,
legally unreasonable, without factual foundation, or asserted for an improper purpose.” Fries v.
Helsper, 146 F.3d 452, 458 (7th Cir. 1998). “[F]or Rule 11 purposes[,] a frivolous argument is
simply one that is baseless or made without a reasonable and competent inquiry.” Berwick Grain
Co., Inc. v. Ill. Dept. of Agric., 217 F.3d 502, 504 (7th Cir. 2000) (internal citation and quotation
marks omitted).“While a court must not sanction a party for a reasonable misconstruction of case
law, a party is not entitled to deliberately ignore or misstate case law that is unfavorable to its

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position.” Teamsters Local No. 579 v. B & M Transit, Inc., 882 F.2d 274, 280 (7th Cir.1989)
(citations omitted).
The Court finds that there were multiple arguments advanced by defense counsel that
were legally unreasonable, indicating a failure to do even basic legal research before filing
papers with this court. Royce v. Michael R. Needle P.C., 950 F.3d 939, 958 (7th Cir. 2020)
(citation omitted) (“The very point of Rule 11 is to lend incentive for litigants ‘to stop, think and
investigate more carefully before serving and filing papers.’”). First, the defense counsel
repeatedly relies on Pierce v. Goldsberry, 35 Ind. 317, 321 (Ind. 1871)— they do so in their
opening brief, their reply, and in their response to Plaintiffs’ surreply. In their opening brief, for
instance, counsel asserts that Pierce stands for the proposition that waiver and acquiescence
“may both apply where a statement was made in a party’s presence which he did not deny, if the
circumstances would have, as here, called for a denial.” (DE 392 at 4.) As previously detailed,
Pierce is a case concerning whether evidence of an opposing party’s silence is admissible as
evidence at trial. Pierce has nothing to do with waiver of legal rights. 10 Instead, Indiana law is
clear that waiver requires an “affirmative act and mere silence, acquiescence, or inactivity will
not constitute waiver unless there is a duty to speak or act.” Pohle v. Cheatham, 724 N.E.2d 655,
659 (Ind. Ct. App. 2000) (emphasis added). Relying on this misstated caselaw, defense counsel
fail to argue that Plaintiffs had a duty to speak, even though Indiana law is clear that both waiver

Pierce includes the word “acquiescence” in its opinion, but the use in Pierce refers to an adoptive admission
dependent on showing that the party-opponent heard, understood, and acquiesced to the statement being made,
thereby making such silence admissible at trial. See Pierce, 35 Ind. at 321 (“[A]cquiescence, to have the effect of an
admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party.”) How
this supports their argument, defense counsel fails to explain. The acquiescence addressed in Pierce can be
contrasted with a distinct doctrine of acquiescence, which “is an intentional assurance to the defendant, express or
implied, that the plaintiff will not assert his rights.” Elvis Presley Enterprises, Inc. v. Elvisly Yours, Inc., 936 F.2d
889 (6th Cir. 1991). Pierce, on its face, has nothing to do with this latter doctrine, and the Court has previously
explained that in Indiana “acquiescence is [not] an independent equitable remedy . . . .” O.K. Sand & Gravel, Inc. v.
Martin Marietta Corp., 786 F. Supp. 1442, 1447 (S.D. Ind. 1992).
10

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and equitable estoppel, if based on a plaintiff’s silence, must also show that a plaintiff had a duty
to speak. Defense counsel’s failure to argue that there was a duty to speak in their opening brief
waived that issue and undermined multiple of their affirmative defenses from the outset.
Counsel’s repeated reliance on Pierce for a proposition it does not support indicates to the Court
that they have deliberately misconstrued or ignored Indiana’s case law regarding waiver of a
legal right.
After waiving their argument concerning duty to speak by failing to raise it in their
opening brief, defense counsel raise it for the first time in their reply. However, defense counsel
continues to deliberately misstate case law. For example, in their reply, when arguing that laches,
waiver, and equitable estoppel applies to bar Plaintiffs’ claims, counsel quotes from SMDfund,
Inc. v. Wayne-Allen County Airport Authority, 831 N.E.2d 725, 729 (Ind. 2005), writing:“[i]f
they were unaware, they are nonetheless charged with notice of these activities.” (DE 397 at 7.)
Defense counsel has failed to indicate that they have substantially altered this quote from the
original, which reads: “If they were unaware, they are nonetheless charged with notice of these
activities by virtue of their public nature.” SMDfund, Inc., 831 N.E. 2d at 729 (emphasis added).
Rather than correctly represent the quotation, which is unfavorable to its position, defense
counsel hides it by not indicating to the Court that they have altered the quotation.
Another example of defense counsel misstating case law is in their discussion of Hellyer
Commc’ns, Inc. v. WRC Properties, Inc., 969 F. Supp. 1150, 1159 (S.D. Ind. 1997), which they
assert supports the rule that there is a duty to speak when “Plaintiffs [have] access to all of the
information.”(DE 397 at 2.) Counsel again includes a misleading quotation, writing that “Hellyer
had a duty to inspect the premises to ensure that they conformed with the Lease and to notify
[Landlord] with any problems.” (DE 397 at 2.) What defense counsel omits, however, is that the

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court in Hellyer was clearly writing that Hellyer had a duty to notify the landlord pursuant to the
terms of the lease. In fact, the entire passage which defense counsel pulls that quote from clearly
discusses whether the lease required Hellyer to notify his landlord:
Hellyer had a duty to inspect its premises to ensure that they conformed with the
Lease and to notify WRC of any problems. Initial Lease Section 2.03. Hellyer
maintains that Section 2.03 only pertained to the Initial Lease and the tenant
improvements made to the leased space, but was not generally in effect as a term
of the Lease. This argument fails in the face of the Integration Clause . . . .
Hellyer Commc’ns, Inc., 969 F. Supp. at 1159 (emphasis added). Given the clarity of this
passage, it provides no support for the proposition Defense counsel puts forth: that “Indiana law
supports that there was a duty to speak, because the Plaintiffs had access to all of the
information.” (DE 397 at 2.)
Defense counsel also raise a frivolous argument in their response to Plaintiffs’ motion for
an award of prejudgment interest. (DE 388.) Indiana law is clear that the ascertainable standard
references the amount of damages, not liability, as “[t]he trier of fact need always exercise its
judgment to determine the liability for damages; but prejudgment interest is proper where the
trier of fact need not exercise its judgment to assess the amount of damages.” City of
Indianapolis v. Twin Lakes Enterprises, Inc., 568 N.E.2d 1073, 1087 (Ind. Ct. App. 1991).
Defense counsel first misrepresents Indiana case law by making the argument that because the
jury was asked to interpret the meaning of “net sales within the subject distributorship,”
prejudgment interest could not be awarded, since the interpretation of “net sales” defined the
scope of damages. (DE 388 at 2.) However, in interpreting that phrase, the jury determined
Defendants’ liability for damages to Plaintiffs. It did not need to exercise discretion in
determining the amount of damages. The amount of damages was apparent from the calculations
of Soward, which Defendants did not object to, impeach, or rebut.

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Defense counsel go on to make another baseless argument, writing that because the “jury
further exercised its judgment and discretion by not uniformly awarding damages across
Plaintiffs and limited its award to Mr. Shera to only the trauma product category . . . it
necessarily relied on its judgment in awarding damages.” (DE 388 at 5.) Again, counsel confuses
the basic distinction between a finding of liability for damages and calculating the amount of
damages. The jury found that Defendants were liable to Shera only for trauma products. (DE
379) Therefore, the jury awarded damages only for trauma products. The amount they gave was
exactly that which Soward calculated for the category of trauma products, so no discretion in
calculating the amount of damages was used by the jury. Given the basic distinction between
determining liability for damages and the amount of damages, these arguments put forth by
counsel are unreasonable.
For the above reasons, the Court believes that sanctioning defense counsel under Rule 11
is proper. “[T]he central purpose of Rule 11 is to deter baseless filings in district court and thus .
. . streamline the administration and procedure of the federal courts.” Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 393 (1990). Each of the arguments above were unreasonable, wasting the
time of the Court, burdening the opposing party, and diverting resources from more pressing
matters. Before determining what is an appropriate sanction, however, the Court is required to
provide the Defendants an opportunity to respond. Johnson, 422 F.3d at 549 (remanding where
the district court failed to give notice of the specific conduct for which it was contemplating
sanctions and to afford the defendant an opportunity to show cause why sanctions were not in
order). Therefore, the Court orders the defense counsel to show cause, within two weeks of the
entry of this order, as to why sanctions should not be imposed.
C.

Conclusion

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For the foregoing reasons, the Court DENIES Defendants’ motion to grant judgment in
its favor. (DE 391.) The Court DENIES Defendants’ motion for a hearing or oral argument. (DE
398.) The Court GRANTS Plaintiffs’ motion for leave to file a surreply. (DE 399.) The Court
also GRANTS Plaintiffs’ motion for an award of Prejudgment interest. 11 (DE 384.) Prior to
entering final judgment, however, Plaintiffs will present updated computations from Mr. Soward
including sales accruing after October 20, 2021, and interest on sales from data unavailable as of
trial. Defense counsel are ORDERED to show cause within two weeks of entry of this order as to
why sanctions should not be imposed.

SO ORDERED.
ENTERED: June 28, 2022
/s/ JON E. DEGUILIO
Chief Judge
United States District Court

11

Plaintiffs are owed the following amount in prejudgment interest up to October 20, 2021:
Hess:
Papa:
Higgins:
McCormick:
Shera:
Tornquist:

$216,830
$216,830
$35,304
$196,313
$404,634
$394,422

44