UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DANETTE MEYER and BEN MEYER, )

)

Plaintiffs )

)

vs. ) CAUSE NO. 3:13-CV-142 RLM 

)

BIOMET, INC. and )

BIOMET ORTHOPEDICS, LLC, )

)

Defendants )

OPINION and ORDER

A hearing was held on March 26, 2015 on the motion of plaintiffs Danette

and Ben Meyer for enforcement of settlement agreement. Based on the parties’

arguments and submissions, I deny the plaintiffs’ motion.

BACKGROUND

The Meyers rely on the following facts to support their motion. The Meyers

say that Mrs. Meyer’s medical records confirm that she qualifies under paragraph

2(a) of the Settlement Agreement for inclusion in Group 1. None of the discounts

in paragraph 2(b) of the Settlement Agreement apply to this case, so the Meyers

registered their case in Group 1 providing for a base compensation award of

$200,000.
The Meyers note that paragraph 2(d) of the Settlement Agreement required

Biomet to notify plaintiffs’ counsel by May 9, 2014 if Biomet disagreed with the

plaintiffs’ categorization of their claim and/or believed that any discounts were

applicable. The Meyers say their counsel received no notification from Biomet by

then; in fact, they say, in a portal posting Biomet categorized their case in Group

1. See Mot., Exh. D. The Meyers maintain that they agreed to accept the $200,000

award and the parties “reached a meeting of the minds on this issue,” as shown

by email correspondence from the Settlement Oversight Committee stating that

“[t]he purpose of the categorization is to have a meeting of the minds as to the

base value of the case based on the values agreed to in the Master Settlement

Agreement.” Mot., Exh. B. The Meyers believe this process locked them into a

compensation award of $200,000.

The Meyers claim the Settlement Oversight Committee’s email told plaintiffs

and their counsel that they had the option to seek an enhancement to the base

award amount pursuant to the deadlines in the Master Settlement Agreement.

They report that they timely requested an enhanced payment before the May 30

deadline based on their belief that because Mrs. Meyer’s metallosis is welldocumented and her medical history included some of the specified criteria

(second revision, dislocations, and infection), they qualified for the enhanced

compensation. The Meyers say they understood that under the terms of paragraph

3(a) of the Settlement Agreement, the issue of an enhanced payment was to be

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decided through mediation, but after the May 30 deadline for requesting an

enhancement, Biomet notified their counsel that the company was challenging all

of the requests for enhanced compensation and withdrawing the initial $200,000

awards in those cases. 

The Meyers believe the Settlement Agreement doesn’t allow Biomet to

contest a case simply because enhanced compensation is sought – they claim the

Settlement Agreement makes clear that Biomet “may only contest a case for ‘good

cause’ and such good cause exists only where there is an ‘objective explanation

for a premature failure of the hip system with the absence of evidence of a MoM

injury.’” Mot., at 8 (quoting Settlement Agreement, p. 5). The Meyers assert that

Biomet’s act of contesting their case only after an enhancement request violates

the terms of the Settlement Agreement. 

The Meyers claim the requirement of mediating enhanced payment requests

doesn’t change their entitlement to the $200,000 compensation award that Biomet

originally agreed to under paragraph 2(a) of the Settlement Agreement. Even

though they believe they qualify for, and are entitled to, an enhanced payment, the

Meyers “are prepared to forego any such benefit upon receipt of the base award

and execution of the proper releases.” Mot., at 10. The Meyers ask the court to

enforce the Settlement Agreement and require Biomet to honor the $200,000

award originally agreed to by the parties.

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Biomet maintains it never reached a binding settlement with the Meyers

“because there was no meeting of the minds on the most crucial settlement term:

the amount of money plaintiffs would receive in exchange for settling this case and

releasing their claims against Biomet. While plaintiffs believe they are entitled to

enhanced compensation, Biomet does not.” Resp., at 1. 

According to Biomet, the Settlement Agreement sets forth a two-step process

for settling a case. The first step is categorization of the case by the plaintiffs and

by Biomet; after that, plaintiffs have a chance to request an enhancement and

Biomet has a chance to contest the enhancement. Only after completion of both

steps can a plaintiff accept an amount, sign a release, and effectuate a settlement. 

Biomet says that while the Meyers initially said they were seeking $200,000

as part of Group 1, they then asked for more money, and Biomet disagreed with

their position. Biomet says whether it had “good cause” to contest a case is an

issue for a mediator to decide, not the court. Biomet asserts that paragraph 3 of

the Settlement Agreement requires that contested cases be mediated – Biomet

says that when it timely contested the Meyers’ case, the Meyers should have

proceeded to mediation; a motion asking this court to enforce settlement isn’t the

proper vehicle for resolving this dispute.

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DISCUSSION

Paragraph 3 of the Settlement Agreement provides that plaintiffs may

qualify for enhanced compensation, MSA, ¶ 3(a); Biomet may seek to reduce

amounts paid to specific plaintiffs, MSA, ¶ 3(b); and cases that fall under

paragraphs 3(a) and/or 3(b) are to be mediated. MSA, ¶ 3(c). The Meyers interpret

the mediation requirement of paragraph 3 as applying only to the enhancement

amount being sought, i.e., the parties would attempt to agree on an amount above

the $200,000 base compensation award for a qualifying Group 1 plaintiff. If an

agreement was reached, the agreed enhancement amount would be added to the

$200,000; if no agreement was reached, the Group 1 plaintiff would be entitled to

the $200,000 award. Biomet disagrees with the Meyers’ interpretation and says

the mediation requirement applies to any contested case in which a dispute over

the amount a plaintiff is to receive exists.

The cases in this MDL have proceeded under the interpretation relied on by

Biomet: a dispute over the amount a plaintiff is to receive must go to mediation

before it comes before me. Paragraph 3(b) of the Settlement Agreement gives

Biomet the right to contest any case if the company “believes that there is good

cause to reduce the amounts to be paid on cases that qualify for payments.” MSA,

¶ 3(b). The Meyers say Biomet lacked good cause to challenge their case and

reduce the amount they were to be paid, but “good cause” under paragraph 3(b)

is subjective, rather than objective, and isn’t limited to the examples set out in

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that paragraph. If the Meyers disagreed with Biomet’s decision to contest their

case, their remedy was to proceed to mediation. 

Based on the terms of the Settlement Agreement, the Meyers’ case fell in the

“contested cases” category once Biomet revoked the offer to settle. The Meyers

then had two options – mediate their claims or proceed to trial on the merits.

Although the March 2 deadline for mediation has passed, the Meyers filed their

motion on February 20, before the deadline. The hearing was held after the March

2 deadline only because of counsels’ unavailability before the March 26 date when

the hearing was finally held. Mediation shouldn’t be excluded as an option.

Alternatively, the Meyers have indicated that they are prepared to forego any claim

for an enhancement and execute the proper releases for receipt of the base

compensation award of $200,000. I strongly encourage the parties to determine

which option is best for all involved and pursue a settlement of this case.

CONCLUSION

Based on the foregoing, the court DENIES the Meyers’ motion to enforce

settlement [docket # 76].

SO ORDERED.

ENTERED: April 6, 2015 

 /s/ Robert L. Miller, Jr. 

Judge, United States District Court

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