Biggins v. Biomet Inc. et al

Filing 18

ORDER Re: 17 Status Report. Signed by Magistrate Judge Nancy J. Koppe on 4/28/2021. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 1 of 8

1 FAEGRE DRINKER BIDDLE & REATH LLP
TARIFA B. LADDON (Pro Hac Vice)
2 [e-mail]
THEODORE E. O'REILLY (Pro Hac Vice)
[e-mail]
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1800 Century Park East, Suite 1500
4 Los Angeles, CA 90067
Telephone: [phone]
5 Facsimile: [phone]
6 Attorneys for Defendants
BIOMET, INC.; BIOMET ORTHOPEDICS, LLC;
7 and BIOMET U.S. RECONSTRUCTION, LLC
8 WETHERALL GROUP, LTD.
Peter C. Wetherall (Nevada Bar No. 4414)
[e-mail]
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9345 West Sunset Road, Suite 100
10 Las Vegas, NV 89148
Telephone: [phone]
11 Facsimile: [phone]
12 Attorneys for Plaintiffs
ANGELA BIGGINS
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(Additional Counsel on following page)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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17 ANGELA J. BIGGINS,
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Plaintiff,
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vs.
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21 BIOMET, INC.; BIOMET
ORTHOPEDICS, LLC; and BIOMET
22 U.S. RECONSTRUCTION, LLC;
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Defendants.
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Case No.: 2:20-cv-02247-JCM-NJK
Honorable James C. Mahan
Honorable Nancy J. Koppe
FRCP RULE 26(F) REPORT
Complaint Filed: December 11, 2020

Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 2 of 8

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ALVERSON TAYLOR & SANDERS
LEANN SANDERS (Nevada Bar No. 390)
[e-mail]
6605 Grand Montecito Pkwy, Suite 200
Las Vegas, NV 89149
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants
BIOMET, INC.; BIOMET ORTHOPEDICS, LLC;
and BIOMET U.S. RECONSTRUCTION, LLC

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BERNHEIM KELLEY BATTISTA & BLISS, LLC
WALTER KELLEY (to be admitted Pro Hac Vice)
[e-mail]
4 Court Street
Plymouth, MA 02360
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff ANGELA BIGGINS

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Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 3 of 8

Counsel for Plaintiff Angela Biggins (“Plaintiff”) in the above-named action and

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counsel for Defendants Biomet, Inc.; Biomet Orthopedics, LLC; and Biomet U.S.

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Reconstruction, LLC (collectively, “Biomet,” and together with Plaintiff, the “Parties”)

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hereby submit this Rule 26(f) Report, which includes a discovery plan and scheduling

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order as requested by the Court. (ECF No. 11)

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I.

OVERVIEW

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This case involves a variety of product liability claims against Biomet stemming

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from implantation of the Biomet M2a Metal-on-Metal Hip Replacement System (“M2a

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Hip Replacement System”) into Plaintiff. Plaintiff asserts five causes of action against

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Biomet in her Complaint: (1) Negligence; (2) Negligent Misrepresentation; (3) Strict

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Liability Design Defect; (4) Strict Liability for Inadequate Warning; and (5) Strict

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Liability for Manufacturing Defect.

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The M2a Hip Replacement System at issue in this case is the subject of a currently

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pending federal multidistrict litigation at the United States District Court for the Northern

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District of Indiana in the South Bend Division, where Judge Robert L. Miller, Jr. presides

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over In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391),

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cause number: 3:12-MD-2391 (“Biomet M2a MDL”), centralized as an MDL on October

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2, 2012.
Plaintiff filed this suit on December 11, 2020, and Biomet filed its Answer on

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March 12, 2021. The Parties met and conferred to create a discovery plan and scheduling

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order. They now file this report pursuant to Fed. R. Civ. P. 26(f).

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II.

FRCP 26(f) DISCOVERY ISSUES

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A.

Anticipated Scope of Discovery (FRCP 26(f)(3)(B))

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The Parties seek a reasonable framework to complete discovery and work this case

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up for trial. While this case was not a part of the Biomet M2a MDL, Biomet must still

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coordinate with the Biomet M2a MDL and similar cases filed across the country. Biomet

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Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 4 of 8

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anticipates that extensive case-specific discovery and pretrial efforts remain in this case

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due to MDL coordination and the complexities of Plaintiff’s case.

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In the Biomet M2a MDL, extensive generic discovery has been completed,

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including production of documents, witnesses and written discovery. Upon the entry by

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this Court of an agreeable Protective Order as to confidentiality and which restricts

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sharing of the confidential documents, Biomet agrees to produce the common-issue

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written discovery and documents, and common issue depositions provided in the MDL

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and state courts before March 12, 2020. Due to the burdens of duplicating these

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exhaustive efforts, Biomet requests that this Court limit discovery only to case-specific

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issues that have not yet been addressed as part of the Biomet M2a MDL or other common

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issue discovery in other jurisdictions.

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As to the case-specific portion of this litigation, both Parties must identify and

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retain case-specific experts to prove causation and/or to address alternative causation, as

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well as fact and expert witnesses qualified to evaluate Plaintiffs’ specific claims for

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damages. Biomet requires deeper investigation into Plaintiff’s significant medical history

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to address alternative causation, including but not limited to her history and progression of

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osteoarthritis and degenerative disc disease, her knee arthroplasties in 2007 and 2018,

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degenerative changes throughout her cervical spine, spinal stenosis, the anterior cervical

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discectomy and fusion surgery that occurred in 2019, and gastritis, among other health

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conditions and procedures. Biomet cannot properly evaluate Plaintiff’s specific claims for

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damages without being afforded an opportunity to investigate Plaintiff’s medical history

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that extends beyond her hip issues with the M2a device. In addition, since this case was

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not part of the MDL, Biomet must begin medical record collection and continue to

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identify all of Plaintiff’s treating physicians and facilities in order to notice the appropriate

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and relevant depositions. This process takes time, especially during the current COVID-

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19 pandemic, as Biomet has experienced significant delay in collecting records due to

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medical facilities’ limited personnel and administrative availability.

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Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 5 of 8

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Thus, Biomet’s remaining preparation includes case-specific: (i) written discovery;

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(ii) collection of additional documents and medical records, likely including x-ray and/or

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MRI images and pathology slides; (iii) fact witness depositions, including Plaintiff’s own

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deposition, her spouse’s deposition (to address her request for loss of consortium

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damages), her treating physicians, and implanting and revising surgeons, among others;

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and (iv) Plaintiff’s expert discovery. Lastly, Biomet will need to retrieve the explanted

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device so that its experts may complete an inspection, which is a particularly lengthy

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process, as scheduling the required reservations at the facilities where inspection occurs

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has been limited, difficult, and protracted as of late due to the obstacles presented by the

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COVID-19 pandemic. Moreover, while certain of Biomet’s generic testifying experts,

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such as physicians, may be required to supplement their reports based on case-specific

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records, generic experts alone will not be sufficient, given Plaintiff’s medical history.

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Biomet must also identify and retain case-specific potential testifying experts.

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Although the Parties agree to work together to discuss and schedule treating

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physician depositions, Biomet requests the necessary time to complete these laborious

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case-specific discovery efforts.

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B.

Electronically Stored Information (FRCP 26(f)(3)(C))

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The scope of ESI discovery will be agreed upon in a stipulated protective order.

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Biomet will produce its ESI discovery produced in the Biomet M2a MDL and state courts

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before March 12, 2020, as to the generic portion of this litigation upon the entry of an

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agreeable Protective Order.

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C.

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The parties intend to enter into a stipulated protective that will govern the exchange

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Privilege and Protection Issues (FRCP 26(f)(3)(D))

of confidential information in this case.

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D.

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Any additional discovery not addressed by the Court should be done consistent

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Changes to Discovery Limitations (FRCP 26(f)(3)(E))

with the Federal Rules of Civil Procedure and the local rules.

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Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 6 of 8

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E.

Other Discovery & Scheduling Orders (FRCP 26(f)(3)(F))

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Biomet asserts that Plaintiff’s discovery should be limited to case-specific written

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requests and depositions that are not duplicative of those taken in the Biomet M2a MDL.

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If Plaintiff agrees to limit discovery here to case-specific discovery, Biomet will agree to

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produce the common issue written discovery and documents, and common issue

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depositions provided in the MDL and state courts before March 12, 2020 upon the Parties’

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entrance of a stipulated protective order for confidentiality and an agreement not to share

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the confidential discovery outside of this litigation.

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III.

SETTLEMENT
The Parties have begun to discuss resolution of this case and request adequate time

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to complete good-faith settlement discussions without the pressure of running up against

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case management deadlines. It is not currently necessary for the Parties to participate in

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any alternative method of dispute resolution.

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IV.

PARTIES’ PROPOSED SCHEDULE:

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The Parties request that the Court consider the proposed schedule in light of the

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extensive discovery to be completed in this case, ongoing discussion to resolve this

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matter, and the approximately 13 M2a-related trials already confirmed for 2021 through

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2022 across the country.

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The parties anticipate a trial of approximately three weeks.
Event

Proposed Date

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1. Last day to exchange Initial Disclosures

June 18, 2021

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2. File motions to amend and/or add parties

July 16, 2021

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3. Completion of fact discovery

January 14, 2022

4. Plaintiff’s designation and service of expert witness reports
for case-specific experts

April 15, 2022

5. Biomet’s designation and service of case-specific expert
witness reports
6. Expert Rebuttal

May 31, 2022

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June 29, 2022

Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 7 of 8

Event

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Proposed Date

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7. Completion of case-specific expert discovery

August 5, 2022

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8. Filing of Daubert motions and dispositive motions

November 18, 2022

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Dated: April 26, 2021

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WETHERALL GROUP, LTD.
By: /s Peter C. Wetherall
PETER C. WETHERALL

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Attorneys for Plaintiff
Angela Biggins

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Dated: April 26, 2021

BERNHEIM KELLEY BATTISTA & BLISS LLC

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By: /s Walter Kelley
WALTER KELLEY

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Attorneys for Plaintiff
Angela Biggins

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Dated: April 26, 2021

FAEGRE DRINKER BIDDLE & REATH LLP

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By:

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Attorneys for Defendants
Biomet, Inc., Biomet Orthopedics, LLC, and
Biomet U.S. Reconstruction, LLC

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/s/ Theodore E. O’Reilly
TARIFA B. LADDON
THEODORE E. O’REILLY

IT IS SO ORDERED.
Dated: April 28, 2021
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_____________________________
Nancy J. Koppe
United States Magistrate Judge

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