UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

NED L. PRICE and SUSAN M. PRICE, )

)

Plaintiffs )

)

vs. ) CAUSE NO. 3:14-cv-275-RLM-CAN

) Part of 3:12-md-2391-RLM

BIOMET, INC., and BIOMET )

ORTHOPEDICS, LLC, )

)

Defendants )

OPINION AND ORDER

Plaintiffs Ned and Susan Price have asked for a suggestion of remand of

their case to the Middle District of Florida. Theirs is one of seven cases remaining

in this MDL docket involving Biomet’s M2a-Taper hip implants instead of the M2aMagnum and M2a-38 implants. The PSC II supports the Prices’ motion, and

Biomet opposes it. 

This docket originally was created only for the Biomet M2a-Magnum and

M2a-38 implants. In April 2013, the Judicial Panel on Multidistrict Litigation

expanded the docket to include the M2a-Taper, adding its customary caveat that

the transferee judge is free to employ separate tracks for the different devices, or

even make a suggestion of remand. The Panel transferred the Prices’ case to this

docket in April 2014, in the midst of a settlement process that resolved the bulk

of the cases in the docket. The Prices’ case didn’t settle. Because the settlements

took most of the original Plaintiffs’ Steering Committee out of the litigation, I

appointed a second steering committee. That second committee — PSC II —
reports that it doesn’t plan to do any discovery specific to the M2a-Taper, leading

the Prices to ask to go home. 

Because they seek remand before the conclusion of pretrial proceedings, the

Prices bear the burden of showing that remand is warranted. See In re Maxim

Integrated Products, Inc., MDL No. 2354, No. 12-244, 2015 WL 1757779, at *3

(W.D. Pa. Apr. 17, 2015) (noting that “because pretrial proceedings have not

concluded, [the movant] has the burden to demonstrate good cause to secure

remand of its case”); In re S. Cent. States Bakery Products Antitrust Litig., 462 F.

Supp. 388, 390 (Jud. Pan. Mult. Lit. 1978) (holding that the JPML “will remand

an action or actions prior to the completion of coordinated or consolidated pretrial

proceedings only upon a showing of good cause,” and declining to remand because

movant “failed to make any such showing.”). 

In deciding whether to suggest remand, I apply the same standards for

remand the Panel would apply. See In re Bridgestone/Firestone, Inc., 128 F.

Supp. 2d 1196, 1197 (S.D. Ind. 2001). Generally, I must ask “whether the case

will benefit from further coordinated proceedings as part of the MDL.” In re Ins.

Brokerage Antitrust Litig., Civ. Nos. 04–5184, 05–5696, 2009 WL 530965, at *2

(D.N.J. March 3, 2009) (citing In re Bridgestone/Firestone, Inc., 128 F. Supp. at

1197). The purpose of pretrial consolidation or coordination is “for the

convenience of the parties and witnesses and [to] promote the just and efficient

conduct of such actions,” 28 U.S.C. § 1407(a), so “the decision of whether to

suggest remand should be guided in large part by whether one option is more

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likely to insure the maximum efficiency for all parties and the judiciary.” United

States ex rel. Hockett, 498 F. Supp. 2d at 38 (internal citations omitted).

The Prices might be right that suggestion of remand will be appropriate in

M2a-Taper cases before the others in this docket, but their case — like the other

M2a-Taper cases — continues to benefit from further coordinated proceedings as

part of MDL-2391. 

Clear differences exist between the M2a-Taper and the other implants. The

M2a-Taper uses titanium for its acetabular shell; the shells on the M2a-Magnum

and M2a-38 implants are made of cobalt-chronium. The M2a-Taper has a smaller

head, among various other technical differences. It seems likely that discovery

related to the design and manufacturing of the implants – and any defects therein

– will be mostly different. And the M2a-Taper was designed years before the other

implants were, so the relevant “state of the art” might vary. 

But the Prices’ argument that “everything that remains to be done in the

instant case is specific to M2a Taper cases, and has no bearing on M2a Magnum

or M2a 38 cases” isn’t quite right. Much of what remains to be done in this and

the other M2a-Taper cases overlaps substantially with what must be done in the

Magnum and M2a-38 cases. Remand isn’t appropriate if continued consolidation

will “eliminate duplicative discovery, prevent inconsistent pretrial rulings, and

conserve the resources of the parties, their counsel and the judiciary.” In re Silica

Prods. Liability Litig., 398 F. Supp. 2d 563, 668 (S.D. Tex. 2005) (citing In re

Heritage Bonds Litig., 217 F. Supp. 2d 1369, 1370 (Jud. Pan. Mult. Lit. 2002)).

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Continued consolidation achieves all of these objectives.

At least some of the general discovery relevant to the Magnum and M2a-38

cases will be relevant to the M2a-Taper cases. Because so little actual discovery

has happened in the MDL thus far, this analysis hasn’t materially changed since

the Panel included the M2a-Taper cases. General discovery related to the medical

issues presented by metal-on-metal implants will apply no matter the implant

type, including expert testimony on the causes and effects of metallosis, the risk

factors for implant failure, and corrosion/degradation of the metal in implants

generally. While the M2a-Taper was designed earlier, the other two implants were

designed as refinements based on it, so it seems likely that there will be at least

some overlap in design considerations and “state of the art” evidence. The parties

haven’t said whether the marketing/promotion and sales practices differed by

implant types, but if Biomet representatives promoted all three implant products

to doctors or patients similarly, there will be even more overlap there.

Continued consolidation also prevents inconsistent pretrial rulings. The

legal issues that dominate the court’s most recent scheduling order – statute of

limitations and spoliation – don’t distinguish between the implant types. As

discussed at the last status conference, Biomet only intends to raise a spoliation

defense for plaintiffs who had a revision surgery after my preservation order. The

legal issue presented on a spoliation-related summary judgment motion will be

whether a plaintiff violated an order of this court, and this court is the best forum

for deciding that question. Were the Prices’ case remanded before I resolve the

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spoliation issues, a transferor judge with limited knowledge of the MDL’s history

would decide whether failure to preserve an implant violated my orders at the

same time I confront that question.

Biomet doesn’t agree that M2a-Taper cases will necessarily be left out when

PSC-II begins conducting general discovery. The Panel’s transfer order explicitly

recognized that different pretrial techniques – such as separate motion and

discovery tracks – might be needed to make sure M2a-Taper cases weren’t left out.

These tools remain available, and might be a less drastic solution than remand.

Other options include appointing the Prices’ counsel (or another attorney who only

has M2a-Taper clients) to the PSC-II to ensure that the Taper plaintiffs’ interests

are adequately represented. All of that remains for future consideration. 

A suggestion of remand for all M2a-Taper cases would impact the six

unidentified remaining M2a-Taper plaintiffs who didn’t join in this motion. The

Prices’ is the only M2a-Taper case in which a suggestion of remand has been

requested based on the differences between the implant types. Suggesting remand

of all M2a-Taper cases without giving the other six plaintiffs notice or an

opportunity to be heard would fall short of the standard of fairness this docket

aspires to. 

Although I will deny the motion for suggestion of remand for the reasons

discussed so far, I need to address an additional argument the PSC II raised, lest

it arise again. The PSC II argued that because Biomet opposed inclusion of the

M2a-Taper cases when the issue was before the Panel, Biomet is judicially

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estopped from arguing that any M2a-Taper cases should remain here. 

Judicial estoppel isn’t a rigidly codified doctrine, but rather “a matter of

equitable judgment and discretion” courts exercise to prevent a litigant from

successfully arguing two inconsistent positions in different legal actions. See In

re Knight-Celotex, LLC, 695 F.3d 714, 721 (7th Cir. 2012). The doctrine is

“intended to prevent the perversion of the judicial process” and typically applies

only when “intentional self-contradiction is being used as a means of obtaining

unfair advantage” by a litigant. Matter of Cassidy, 892 F.2d 637, 641 (7th Cir.

1990) (quoting Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir. 1953). The

Supreme Court has noted that judicial estoppel is “not reducible to any general

formulation of principle,” but that certain factors “typically inform the decision

whether to apply the doctrine in a particular case.” New Hampshire v. Maine, 532

U.S. 742, 750 (2001) (internal quotation omitted). These conditions include: (1)

that a party’s later position must be clearly inconsistent with a position it took

earlier; (2) that the party asserted the earlier position successfully in an earlier

proceeding; and (3) that the party seeking to assert the inconsistent position

would derive some unfair advantage from doing so. See id. at 750-751.

None of the Supreme Court’s three suggested conditions apply to Biomet.

The position that consolidation of the M2a-Taper cases would be inappropriate at

the outset of the MDL isn’t clearly inconsistent with its position that remand is

inappropriate now, after the parties have spent years litigating these cases and the

transferee court has gained experience with and understanding of the issues

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presented. Biomet could quite reasonably have thought that the M2a-Taper cases

didn’t belong here initially, but also that it would be inefficient to send them back

halfway through. Perhaps more importantly, Biomet was unsuccessful in opposing

consolidation of the M2a-Taper cases before the Panel. The idea behind judicial

estoppel is to “protect[] the courts from being manipulated by chameleonic

litigants who seek to prevail, twice, on opposite theories.” Grochocinski v. Mayer

Brown Rowe & Maw, LLP, 719 F.3d 785, 795 (7th Cir. 2013). There’s no danger

here of Biomet prevailing twice; it lost when arguing against consolidation the first

time around. Finally, PSC II doesn’t identify any way Biomet would gain an

advantage – unfair or otherwise – by switching its position on the propriety of

including M2a-Taper cases in the MDL docket. Instead, PSC II’s argument focuses

entirely on its own cost of having to oversee discovery of only seven cases rather

than any advantage to Biomet.

Regardless of whether a suggestion of remand of the M2a-Taper cases might

be appropriate later, the time for suggestion of remand of the M2a-Taper cases

hasn’t arrived. The Prices’ motion for a suggestion of remand (doc. 74) is DENIED. 

SO ORDERED.

ENTERED: February 8, 2016 

 /s/ Robert L. Miller, Jr. 

Robert L. Miller, Jr., Judge

United States District Court 

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