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)

Download PDF
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 THEODORE E. O'REILLY (Pro Hac Vice) 3 1800 Century Park East, Suite 1500 4 Los Angeles, CA 90067 Telephone: (310) 203-4000 5 Facsimile: (310) 229-1285 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) 9 9345 West Sunset Road, Suite 100 10 Las Vegas, NV 89148 Telephone: (702) 838-8500 11 Facsimile: (702) 837-5081 12 Attorneys for Plaintiffs ANGELA BIGGINS 13 (Additional Counsel on following page) 14 UNITED STATES DISTRICT COURT 15 DISTRICT OF NEVADA 16 17 ANGELA J. BIGGINS, 18 Plaintiff, 19 vs. 20 21 BIOMET, INC.; BIOMET ORTHOPEDICS, LLC; and BIOMET 22 U.S. RECONSTRUCTION, LLC; 23 Defendants. 24 25 26 27 28 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 1 2 3 4 5 6 7 ALVERSON TAYLOR & SANDERS LEANN SANDERS (Nevada Bar No. 390) 6605 Grand Montecito Pkwy, Suite 200 Las Vegas, NV 89149 Telephone: (702) 384-7000 Facsimile: (702) 385-7000 Attorneys for Defendants BIOMET, INC.; BIOMET ORTHOPEDICS, LLC; and BIOMET U.S. RECONSTRUCTION, LLC 10 BERNHEIM KELLEY BATTISTA & BLISS, LLC WALTER KELLEY (to be admitted Pro Hac Vice) 4 Court Street Plymouth, MA 02360 Telephone: (617) 420-1111 Facsimile: (617) 830-0379 11 Attorneys for Plaintiff ANGELA BIGGINS 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 counsel for Defendants Biomet, Inc.; Biomet Orthopedics, LLC; and Biomet U.S. 3 Reconstruction, LLC (collectively, “Biomet,” and together with Plaintiff, the “Parties”) 4 hereby submit this Rule 26(f) Report, which includes a discovery plan and scheduling 5 order as requested by the Court. (ECF No. 11) 6 I. OVERVIEW 7 This case involves a variety of product liability claims against Biomet stemming 8 from implantation of the Biomet M2a Metal-on-Metal Hip Replacement System (“M2a 9 Hip Replacement System”) into Plaintiff. Plaintiff asserts five causes of action against 10 Biomet in her Complaint: (1) Negligence; (2) Negligent Misrepresentation; (3) Strict 11 Liability Design Defect; (4) Strict Liability for Inadequate Warning; and (5) Strict 12 Liability for Manufacturing Defect. 13 The M2a Hip Replacement System at issue in this case is the subject of a currently 14 pending federal multidistrict litigation at the United States District Court for the Northern 15 District of Indiana in the South Bend Division, where Judge Robert L. Miller, Jr. presides 16 over In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391), 17 cause number: 3:12-MD-2391 (“Biomet M2a MDL”), centralized as an MDL on October 18 2, 2012. Plaintiff filed this suit on December 11, 2020, and Biomet filed its Answer on 19 20 March 12, 2021. The Parties met and conferred to create a discovery plan and scheduling 21 order. They now file this report pursuant to Fed. R. Civ. P. 26(f). 22 II. FRCP 26(f) DISCOVERY ISSUES 23 A. Anticipated Scope of Discovery (FRCP 26(f)(3)(B)) 24 The Parties seek a reasonable framework to complete discovery and work this case 25 up for trial. While this case was not a part of the Biomet M2a MDL, Biomet must still 26 coordinate with the Biomet M2a MDL and similar cases filed across the country. Biomet 27 28 -1- Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 4 of 8 1 anticipates that extensive case-specific discovery and pretrial efforts remain in this case 2 due to MDL coordination and the complexities of Plaintiff’s case. 3 In the Biomet M2a MDL, extensive generic discovery has been completed, 4 including production of documents, witnesses and written discovery. Upon the entry by 5 this Court of an agreeable Protective Order as to confidentiality and which restricts 6 sharing of the confidential documents, Biomet agrees to produce the common-issue 7 written discovery and documents, and common issue depositions provided in the MDL 8 and state courts before March 12, 2020. Due to the burdens of duplicating these 9 exhaustive efforts, Biomet requests that this Court limit discovery only to case-specific 10 issues that have not yet been addressed as part of the Biomet M2a MDL or other common 11 issue discovery in other jurisdictions. 12 As to the case-specific portion of this litigation, both Parties must identify and 13 retain case-specific experts to prove causation and/or to address alternative causation, as 14 well as fact and expert witnesses qualified to evaluate Plaintiffs’ specific claims for 15 damages. Biomet requires deeper investigation into Plaintiff’s significant medical history 16 to address alternative causation, including but not limited to her history and progression of 17 osteoarthritis and degenerative disc disease, her knee arthroplasties in 2007 and 2018, 18 degenerative changes throughout her cervical spine, spinal stenosis, the anterior cervical 19 discectomy and fusion surgery that occurred in 2019, and gastritis, among other health 20 conditions and procedures. Biomet cannot properly evaluate Plaintiff’s specific claims for 21 damages without being afforded an opportunity to investigate Plaintiff’s medical history 22 that extends beyond her hip issues with the M2a device. In addition, since this case was 23 not part of the MDL, Biomet must begin medical record collection and continue to 24 identify all of Plaintiff’s treating physicians and facilities in order to notice the appropriate 25 and relevant depositions. This process takes time, especially during the current COVID- 26 19 pandemic, as Biomet has experienced significant delay in collecting records due to 27 medical facilities’ limited personnel and administrative availability. 28 -2- Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 5 of 8 1 Thus, Biomet’s remaining preparation includes case-specific: (i) written discovery; 2 (ii) collection of additional documents and medical records, likely including x-ray and/or 3 MRI images and pathology slides; (iii) fact witness depositions, including Plaintiff’s own 4 deposition, her spouse’s deposition (to address her request for loss of consortium 5 damages), her treating physicians, and implanting and revising surgeons, among others; 6 and (iv) Plaintiff’s expert discovery. Lastly, Biomet will need to retrieve the explanted 7 device so that its experts may complete an inspection, which is a particularly lengthy 8 process, as scheduling the required reservations at the facilities where inspection occurs 9 has been limited, difficult, and protracted as of late due to the obstacles presented by the 10 COVID-19 pandemic. Moreover, while certain of Biomet’s generic testifying experts, 11 such as physicians, may be required to supplement their reports based on case-specific 12 records, generic experts alone will not be sufficient, given Plaintiff’s medical history. 13 Biomet must also identify and retain case-specific potential testifying experts. 14 Although the Parties agree to work together to discuss and schedule treating 15 physician depositions, Biomet requests the necessary time to complete these laborious 16 case-specific discovery efforts. 17 B. Electronically Stored Information (FRCP 26(f)(3)(C)) 18 The scope of ESI discovery will be agreed upon in a stipulated protective order. 19 Biomet will produce its ESI discovery produced in the Biomet M2a MDL and state courts 20 before March 12, 2020, as to the generic portion of this litigation upon the entry of an 21 agreeable Protective Order. 22 C. 23 The parties intend to enter into a stipulated protective that will govern the exchange 24 Privilege and Protection Issues (FRCP 26(f)(3)(D)) of confidential information in this case. 25 D. 26 Any additional discovery not addressed by the Court should be done consistent 27 Changes to Discovery Limitations (FRCP 26(f)(3)(E)) with the Federal Rules of Civil Procedure and the local rules. 28 -3- Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 6 of 8 1 E. Other Discovery & Scheduling Orders (FRCP 26(f)(3)(F)) 2 Biomet asserts that Plaintiff’s discovery should be limited to case-specific written 3 requests and depositions that are not duplicative of those taken in the Biomet M2a MDL. 4 If Plaintiff agrees to limit discovery here to case-specific discovery, Biomet will agree to 5 produce the common issue written discovery and documents, and common issue 6 depositions provided in the MDL and state courts before March 12, 2020 upon the Parties’ 7 entrance of a stipulated protective order for confidentiality and an agreement not to share 8 the confidential discovery outside of this litigation. 9 III. SETTLEMENT The Parties have begun to discuss resolution of this case and request adequate time 10 11 to complete good-faith settlement discussions without the pressure of running up against 12 case management deadlines. It is not currently necessary for the Parties to participate in 13 any alternative method of dispute resolution. 14 IV. PARTIES’ PROPOSED SCHEDULE: 15 The Parties request that the Court consider the proposed schedule in light of the 16 extensive discovery to be completed in this case, ongoing discussion to resolve this 17 matter, and the approximately 13 M2a-related trials already confirmed for 2021 through 18 2022 across the country. 19 20 The parties anticipate a trial of approximately three weeks. Event Proposed Date 21 1. Last day to exchange Initial Disclosures June 18, 2021 22 2. File motions to amend and/or add parties July 16, 2021 23 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 24 25 26 27 28 -4- June 29, 2022 Case 2:20-cv-02247-JCM-NJK Document 17 Filed 04/26/21 Page 7 of 8 Event 1 Proposed Date 2 7. Completion of case-specific expert discovery August 5, 2022 3 8. Filing of Daubert motions and dispositive motions November 18, 2022 4 5 6 Dated: April 26, 2021 7 WETHERALL GROUP, LTD. By: /s Peter C. Wetherall PETER C. WETHERALL 8 9 Attorneys for Plaintiff Angela Biggins 10 11 Dated: April 26, 2021 BERNHEIM KELLEY BATTISTA & BLISS LLC 12 By: /s Walter Kelley WALTER KELLEY 13 14 Attorneys for Plaintiff Angela Biggins 15 16 Dated: April 26, 2021 FAEGRE DRINKER BIDDLE & REATH LLP 17 18 By: 19 20 Attorneys for Defendants Biomet, Inc., Biomet Orthopedics, LLC, and Biomet U.S. Reconstruction, LLC 21 22 23 24 25 26 27 /s/ Theodore E. O’Reilly TARIFA B. LADDON THEODORE E. O’REILLY IT IS SO ORDERED. Dated: April 28, 2021 . . _____________________________ Nancy J. Koppe United States Magistrate Judge 28 -5-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?