A motion has been filed in the litigation surrounding certain Zimmer NexGen knee replacement products, including ;Zimmer NexGen CR-Flex femoral components, ;Zimmer NexGen MIS tibial components or ;Zimmer NexGen LPS-Flex femoral components, seeking to have the cases consolidated in a multidistrict litigation, or MDL, and transferred to one federal court. At present, the Zimmer NexGen Knee replacement products are name in 28 lawsuits in 13 federal jurisdictions, but plaintiffs’ attorneys believe that hundreds more could be filed in the near future.
In a motion filed on June 6, plaintiff Fred Stone requested that the Judicial Panel on Multidistrict Litigation (JPML) establish In re: Zimmer NexGen Knee Products Liability Litigation, MDL Docket No. 2272, in the U.S. District Court for the Northern District of Illinois. The motion asks that the MDL be overseen by Judge Joan LeFkow.
Mr. Stone’s motion alleges that Zimmer NexGen high-flex Knee Implant Devices have been reported to have a failure rate of 9 percent. It further alleges that a consultant brought these problems to Zimmerâ€™s attention. The motion also points out that the U.S. Food & Drug Administration (FDA) issued a Class II recall relating to the NexGen MIS Tibial components in September 2010, after a study revealed a failure rate of up to 24% when a stem/keel was not used with the tibial component.
The NexGen MIS Tibial component is marketed and promoted as compatible with the LPS-Flex and CR-Flex femoral components and they are often used together. According to the motion, of the 28 cases now pending against Zimmer, many are a combination of a NexGen high-flex and NexGen MIS tibial.
The motion further states that all of the pending complaints make very similar factual allegations, and thus any necessary discovery will arise from common questions of fact. Plaintiffs claim they have suffered permanent disability or have undergone revision surgery to remove or replace the implants because they failed far in advance of their projected lifespan. They accuse Zimmer of downplaying and overstating the devices’ risks.
An MDL allows lawsuits associated with a particular product to be coordinated under one judge for pretrial litigation to avoid duplicative discovery, inconsistent rulings and to conserve the resources of the parties, witnesses and the court. When lawsuits are consolidated as a multidistrict litigation, each retains its own identity. If the multidistrict litigation process does not resolve the cases, they are transferred back to the court where they originated for trial.
The JPML will consider Mr. Stone’s motion requesting the Zimmer NexGen MDL during a hearing in San Francisco, California on July 28.