Plaintiffs lawyers bow out of Zimmer Biomet’s NexGen Flex knee MDL

Some 129 plaintiffs in the multi-district litigation brought over the NexGen Flex knee implants made by Zimmer Biomet (NYSE:ZBH) need to find new lawyers after their attorneys bowed out of their cases.

Judge Rebecca Pallmeyer of the U.S. District Court for Northern Illinois, who is overseeing the MDL, gave plaintiffs until July 15 to ask for a review of their cases by volunteer lawyers.

“In a number of cases, attorneys who represented individual plaintiffs in this MDL proceeding have sought leave to withdraw. After reviewing submissions from counsel in connection with such requests, the court granted many of these motions, as it appeared that withdrawal is consistent with counsel’s ethical obligations to the court and to their clients. As a result, however, dozens of plaintiffs who were previously represented by counsel now find themselves proceeding without representation,” Pallmeyer wrote July 5. “The court is sensitive to the difficulties of proceeding without counsel in a complex proceeding such as this one. Plaintiffs’ Steering Committee counsel have proposed, and, with the agreement of Zimmer’s counsel, the court has adopted a procedure for further attorney review of these cases. As described below, the procedure will give unrepresented plaintiffs access to experienced attorneys who have agreed to perform a brief further review of plaintiffs’ cases on a volunteer basis.”

At least 5,900 NexGen product liability lawsuits have been consolidated into the MDL under Pallmeyer, but the going has been anything but smooth. Although a pair of bellwether trials are scheduled for October and November, it’s been a challenge to find suitable bellwethers; in June the judge issued a so-called “Lone Pine” order requiring plaintiffs to prove their cases.

Named for a 1986 decision dismissing a mass toxic tort case against a New Jersey landfill, a Lone Pine order requires plaintiffs to show a link between their injuries and the product accused of causing it.

An Illinois jury in November 2015 cleared Zimmer Biomet in the MDL’s 1st bellwether, finding that the plaintiff failed to prove her defective design and failure to warn claims.

The FDA in 2007 cleared the NexGen Flex implant, designed to provide more flexibility than other knee replacement devices. Plaintiffs in the lawsuits allege that the device can’t withstand the extra flexion, despite the Warsaw, Ind.-based company’s marketing claims. The plaintiffs also allege that a design flaw makes the device more prone to premature loosening requiring revision procedures.

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