MDL judge tosses NexGen knee defect suit after axing plaintiff’s expert

November 28, 2016

Courtesy of Westlaw Medical Litigator

A Wisconsin man who says design defects caused the failure of his Zimmer NexGen prosthetic knee has seen his suit dismissed after the federal judge in the multidistrict litigation over the device excluded his primary expert witness.

U.S. District Judge Rebecca R. Pallmeyer of the Northern District of Illinois granted Zimmer Inc.’s motion for summary judgment in the suit, brought by Wisconsin resident Theodore Joas and his wife, Darlene.

The judge found the Joases’ proposed supporting testimony of biomechanics expert Joseph F. Fetto was based on questionable methodology.

In a suit that echoes most others in the Chicago multidistrict litigation over the Zimmer NexGen knee implant, the Joases say the device Theodore received during a total knee replacement procedure loosened, causing pain and loss of movement.

The failure forced him to undergo a revision operation to replace the prosthesis, according to the suit.

The Joases say the implant failed due to design defects and that Zimmer inadequately warned surgeons and potential implant recipients of its risks.

But in dismissing the suit, the judge called Fetto’s testimony “problematic.” She said Fetto ruled out several possible causes and concluded that Joas’ knee implant loosened and failed after four years because its design allowed undue weight-loading stress issues during knee flexation.

Fetto claimed the NexGen’s design made it vulnerable to debonding from the cement holding it in place and loosening during high-flexation activities.

Judge Pallmeyer said Fetto’s testimony was inadmissible because it “does not refer to any literature or give any explanation for why the implant design, and asymmetric loading generally, causes debonding and, in turn, loosening.”

The judge said the absence of such supporting information was fatal to the Joases’ case.

“The question of what caused the tibial component of Joas’ implant to loosen is a matter outside the common knowledge and everyday experience of the lay juror, and thus plaintiffs cannot establish causation without the support of expert testimony,” Judge Pallmeyer said.

She noted that the Joases’ case was the second picked for a bellwether trial in the MDL. The first was Batty v. Zimmer Inc. et al., No. 12 C 6279, verdict returned (N.D. Ill., E. Div. Nov. 6, 2015).

Unlike the Joases, Batty plaintiff Kathy Batty was able to go to trial because she offered “significant radiographic evidence” not present in the Joas case that appeared to link her injury with her general causation theories, the judge said.

Although testimony from the Joases’ two other proffered experts, Thomas Brown on biomechanical engineering and statistician David Madigan, would likely be admissible, that testimony would not have been enough to save the case, the judge said.

The judge noted that Batty may have been able to get to trial because she did not have to comply with a Wisconsin state law, Wis. Stat. § 895.047(1)(a), requiring that plaintiffs asserting design defect claims provide evidence of a safer alternative design.

In re Zimmer NexGen Knee Implant Products Liability Litigation; Joas et al. v. Zimmer Inc., MDL Nos. 2272 and No. 13-9216, 2016 WL 6135685 (N.D. Ill. Oct. 21, 2016).