Bartis v. Biomet, Inc. et al

Filing 54

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Consolidate (Doc. 28 ), is GRANTED. The parties are directed to submit filings in the above-captioned case. IT IS FURTHER ORDERED that the Clerk is directed to close Hollins v. Biomet, No. 4:18-cv-02093-JAR, and Gowins v. Biomet, No. 4:18-cv-02094-RLW. Signed by District Judge John A. Ross on 1/24/2020. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOHN BARTIS,
Plaintiffs
vs.
BIOMET, INC., et al.,
Defendants.

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Case No. 4:13-cv-00657-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff John Bartis’s Motion to Consolidate this case
with Hollins v. Biomet, No. 4:18-cv-02093-JAR, and Gowins v. Biomet, No. 4:18-cv-02094RLW. (Doc. 28.) The motion has been fully briefed and a hearing before the undersigned was
held on January 13, 2020, at which both sides presented oral argument on the record. (See Docs.
50, 51.)
Background
All three cases stem from hip replacement surgeries implanting a M2a-Magnum metalon-metal (“MoM”) artificial hip, manufactured or marketed by Defendants Biomet, Inc.; Biomet
Orthopedics, LLC; Biomet U.S. Reconstruction, LLC; and Biomet Manufacturing Corp.
(collectively, “Biomet”).

The Magnum is a three-piece device:

a surgeon attaches the

“acetabular cup” to the hip bone, removes the top of the femur, installs a taper insert and new,
artificial femoral head, and then seats the femoral head into the acetabular cup. In a MoM
model, both the cup and the head are made of metal. All three patients experienced significant

pain and required subsequent surgery to revise the implantation. In all three cases, the acetabular
cup in the MoM is alleged to have been a primary contributor to the negative outcome.
John Bartis 1 was forty-nine years old when he had his left hip replaced. He began
experiencing extreme pain almost immediately after the operation, later determined to have been
caused by a periprosthetic fracture in his femur—small breaks were caused around the implant.
Bartis underwent a second surgery a week after the first to revise the implantation and suffered
severe post-operative conditions, including acute kidney failure. He ultimately underwent a third
surgery to have the Magnum replaced with an artificial joint made by a different manufacturer.
Guan Hollins 2 was forty-two when a surgeon replaced his left hip with a Magnum device.
More than seven years later, worsening pain led to a revision in which the Magnum MoM was
replaced with a metal-on-polyethylene (“MoP”) model, in which the acetabular cup is separated
from the femoral head by a polyethylene liner. The revision resolved Hollins’ hip issue.
Judith Gowens 3 was sixty-eight when she had a Magnum device implanted in her right
hip joint. The device performed without complication for more than six years before worsening
pain in her hip brought her back for evaluation. In the interim, she underwent a number of
significant orthopedic surgeries and was diagnosed with severe central spinal canal stenosis,
which doctors suspect might have contributed to her hip pain. Radiography identified a piece of
surgical drill bit that had broken off and been left inside Gowens’s body during the hip
replacement. She underwent a revision at the age of seventy-five and the Magnum MoM was
replaced with an MoP model.
Believing that their negative outcomes were due in whole or in part to defects in the
design of the M2a-Magnum MoM device, Plaintiffs filed suit against Biomet. Along with
Bartis v. Biomet, No. 4:13-cv-00657-JAR
Hollins v. Biomet, No. 4:18-cv-02093-JAR
3
Gowens v. Biomet, No. 4:18-cv-02094-RLW
1
2

hundreds of others, Plaintiffs’ cases were transferred and joined into In re Biomet M2a Magnum
Hip Implant Prods. Litig., MDL-2391. A significant number of those cases settled and the
remaining cases, including Plaintiffs’, were remanded to the transferring courts for independent
consideration. Plaintiffs now seek to consolidate their cases, arguing that they are so legally and
factually similar that a consolidated trial would be more efficient and cost effective.
Plaintiffs all allege claims of strict products liability, including failure to warn, as well as
claims

of

negligence,

breach

of

warranty,

negligent

misrepresentation,

fraudulent

misrepresentation, and fraudulent concealment. All seek compensatory and punitive damages.
Gowens and Hollins’s spouses are also named plaintiffs in their respective cases and advance
claims for loss of consortium.
Defendants oppose consolidation, arguing that the patients’ medical histories and surgical
experiences are so dissimilar that the individual fact issues would predominate over their similar
legal claims. In addition, Defendants argue that separate trials would be faster and cheaper and
would avoid prejudicial “overflow evidence” that leads the jury to find liability for a plaintiff
based on evidence adduced in another plaintiff’s case.
Legal Standard
“The Court has broad discretion to order consolidation.” A.O.A., 2016 WL 1182631, at
*2 (citing Enterprise Bank v. Saettele, 21 F.3d 233, 235 (8th Cir. 1994)). Under Federal Rule of
Civil Procedure 42, “actions before the court [that] involve a common question of law or fact”
may be: “join[e]d for hearing or trial”; “consolidate[d]”; or otherwise managed “to avoid
unnecessary cost or delay.” Because the primary benefit of consolidation is judicial economy,
“[c]onsolidation is inappropriate . . . if it leads to inefficiency, inconvenience, or unfair prejudice
to a party.” E.E.O.C. v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998). Moreover, “for
convenience, to avoid prejudice, or to expedite and economize, the court may [consolidate cases

but] order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or
third-party claims.” Id.
The threshold consolidation inquiry is “whether the proceedings involve a common party
and common issues of fact or law.” A.O.A. v. Doe Run Res. Corp., No. 4:11 CV 44 CDP, 2016
WL 1182631, at *2 (citing HBE Corp., 135 F.3d at 551). That said, “[t]he mere existence of
common issues . . . does not mandate that the cases be joined.” Id. (citing Northstar Marine, Inc.
v. Huffman, Nos. 13-0037-WS-C, 14-0205-KD-M, 2014 WL 4167019, at *2 (S.D. Ala. Aug. 21,
2014)). The “critical question for the district court,” therefore, is “whether the specific risks of
prejudice and possible confusion” are greater than “the risk of inconsistent adjudications of
common factual and legal issues, the burden on parties, witnesses and available judicial
resources posed by multiple lawsuits, the length of time required to conclude multiple suits as
against a single one, and the relative expense to all concerned of the single-trial, multiple-trial
alternatives.” Arnold v. E. Air Lines, Inc., 681 F.2d 186, 193 (4th Cir. 1982), on reh’g, 712 F.2d
899 (4th Cir. 1983) (citing Fed. R. Civ. P. 42; 9 C. Wright & A. Miller, Federal Practice &
Procedure: Civil s 2383 (1971)).
Discussion
As noted, Plaintiffs’ legal claims are largely aligned. In addition, there are significant
factual similarities across all three cases; the patients all received a M2a-Magnum MoM artificial
hip, 4 within a fourteen-month period, had complications related to the acetabular cup, and
required surgical revisions. Likewise, because the implantations occurred in close temporal
proximity, the applicable instructions for use, marketing literature, and general medical

Gowens’s M2a-Magnum used a “Tri-Spike” acetabular cup, which included sharp metal points
designed to improve the security of the cup’s attachment to the hip bone.

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understanding of the risks and benefits associated with the device would also have been largely
the same.
That said, the patients are dissimilar in relevant ways, most notably in their individual
pre- and post-surgical medical histories. As noted, the onset and nature of complications related
to each patient’s hip implant differs; one suffered a small fracture around the implant during the
surgery, one allegedly experienced pain when the acetabular cup was catching soft tissue long
after the implantation, and the third went years before having issues with the cup’s connection to
the hip bone. In addition, each patient’s revision surgery featured unique circumstances; one was
given a new implant from another manufacturer, one was given a MoP model from Biomet, and
the third had to have a piece of drill bit removed before the implant could be addressed.
Still, on balance, the Court believes that the cases are more alike than they are different
and that the differences can be adequately addressed at trial by Defendants. Moreover, all three
patients’ medical histories involve an alleged failure of the same device, meaning there is
significant efficiency to be gained by explaining the medical science and engineering of that
device one time to a single jury.
In addition, the Court notes that Defendants’ knowledge of the inherent medical risks of
the Magnum device is a central issue in all three cases, increasing the risk of inconsistent
adjudications; one jury could find that Defendants’ knowledge was sufficient to prove liability
while a second jury, considering essentially identical facts, could find that Defendants did not
know enough to be held liable. To that end, evidence regarding what Defendants knew and
when they knew it would need to be presented only once in a consolidated trial. The same can
be said for expert testimony regarding the design and use of the M2a-Magnum; there is no way
around presenting each patient’s medical history—including testimony from their treating
physicians—but the facts surrounding the device’s design and the Defendants’ knowledge are

identical and expert testimony on those matters could be presented only once. As such, the Court
believes a consolidated trial would be cheaper and faster than three individual trials.
Lastly, the Court is not persuaded by Defendants’ claims about the risk of spillover
evidence. As Plaintiffs note, juries are often instructed on what evidence they can and cannot
consider for a given legal claim and are presumed to follow those directions. Weeks v. Angelone,
528 U.S. 225, 234 (2000) (citing Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.
Ed. 2d 176 (1987)).

Likewise, the Court believes that the jury can follow the Court’s

instructions regarding its consideration of punitive damages. As such, the Court concludes that
the effect of spillover evidence can be successfully managed such that any prejudice is
outweighed by the significant economy of a consolidated trial. Finally, while recognizing the
benefits of consolidation, the Court recognizes that it can always reconsider this order and
determine at a later date that severance is required.
Conclusion
For the foregoing reasons and those stated on the record,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Consolidate (Doc. 28), is
GRANTED. The parties are directed to submit filings in the above-captioned case.
IT IS FURTHER ORDERED that the Clerk is directed to close Hollins v. Biomet, No.
4:18-cv-02093-JAR, and Gowins v. Biomet, No. 4:18-cv-02094-RLW.

Dated this 24th day of January, 2020.

________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE