UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

MARION GUYNN, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Cause No. 3:14-cv-1784 RLM-MGG 

 ) 

BIOMET, INC., et al., ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

Marion Guynn sued Biomet for damages in connection with the alleged 

failure of his Biomet M2a-38 hip implant. Biomet moved for summary judgment, 

arguing that his claims are time-barred based on (1) a proposed date on which 

all plaintiffs were on constructive notice of potential claims and (2) facts specific 

to Mr. Guynn. I disagree with both of Biomet’s arguments, and deny Biomet’s 

summary judgment motion. 

I. STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings, discovery 

materials, disclosures, and affidavits demonstrate no genuine issue of material 

fact, such that the movant is entitled to judgment as a matter of law. Protective 

Life Ins. Co. v. Hansen, 632 F.3d 388, 391-92 (7th Cir. 2011). I must construe 

the evidence and all inferences that reasonably can be drawn from the evidence 

in the light most favorable to Mr. Guynn, as the non-moving party. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). As the moving party, Biomet bears 
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the burden of informing me of the basis for its motion, together with evidence 

demonstrating the absence of any genuine issue of material fact. Celotex Corp. 

v. Catrett, 477 U.S. 317, 323 (1986). If Biomet meets that burden, Mr. Guynn 

can’t rest upon the allegations in the pleadings, but must “point to evidence that 

can be put in admissible form at trial, and that, if believed by the fact-finder, 

could support judgment in his favor.” Marr v. Bank of Am., N,A., 662 F.3d 963, 

966 (7th Cir. 2011); see also Hastings Mut. Ins. Co. v. LaFollette, No. 1:07-cv1085, 2009 WL 348769, at *2 (S.D. Ind. Feb. 6, 2009) (“It is not the duty of the 

court to scour the record in search of evidence to defeat a motion for summary 

judgment; rather, the nonmoving party bears the responsibility of identifying the 

evidence upon which he relies.”); Hammel v. Eau Galle Cheese Factory, 407 F.3d 

852, 859 (7th Cir. 2005) (summary judgment is “not a dress rehearsal or practice 

run; it is the put up or shut up moment in a lawsuit, when a party must show 

what evidence it has that would convince a trier of fact to accept its version of 

events”). 

II. THE PROPOSED BAR DATE

First, Biomet asks me to establish a bar date applicable to all plaintiffs. 

Biomet argues that enough information was publicly available to put any 

reasonable plaintiff on notice by February 10, 2011 that her injury might be 

connected to Biomet’s M2a metal-on-metal hip implant. As Biomet sees it, if a 

plaintiff was injured on or before February 10, 2011, the statute of limitations 
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would begin to run then. If the plaintiff was injured after February 10, 2011, the 

statute of limitations would begin to run on the date of injury. 

The discovery rule postpones the accrual of a cause of action until the 

plaintiff knew, or through exercise of reasonable diligence should have known, 

that she was injured. See, e.g., Fla. Stat. § 95.031(2)(b); 735 Ill. Comp. Stat. 

5/13-213(d); N.C. Gen. Stat. § 1-52(16); Wash. Rev. Code § 7.72.060(3); Martin 

v. Arthur, 3 S.W.3d 684, 690 (Ark. 1999); In re Med. Review Panel of Howard, 

573 So. 2d 472, 474 (La. 1991); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 

351 (Tex. 1990). 

Biomet contends that this publicly available information put a reasonable 

plaintiff on notice of a potential claim by the proposed bar date: the device’s 

Instructions for Use, articles in medical journals, press reports, and the Food 

and Drug Administration’s websites. The Instruction for Use for Biomet’s metalon-metal hip implants disclosed that using the device could pose a risk of 

exposure to metal debris, including osteolysis, metal hypersensitivity, and 

elevated metal ion levels. Eight 2010 medical journal articles raised concerns 

about the risks associated with metal-on-metal hip implants, including an 

editorial in the Journal of Arthroplasty, the official, peer-reviewed journal of the 

Association of Hip and Knee Surgeons. See Ross Crawford et al., Metal on Metal: 

Is it Worth the Risk?, J. ARTHROPLASTY, Sept. 2010, at 1.1

 

1 See also Joseph Daniel et al., Renal Clearance of Cobalt in Relation to the Use of Metalon-Metal Bearings in Hip Arthroplasty, 92 J. BONE & JOINT SURGERY 840 (2010); C. 

Delaunay et al., Metal-on-Metal Bearings Total Hip Arthroplasty: The Cobalt and 

Chromium Ions Release Concern, 96 ORTHOPAEDICS & TRAUMATOLOGY: SURGERY &

RESEARCH 894 (2010); Brian M. Devitt et al., Cobalt Ions Induce Chemokine Secretion in 
4 

Biomet argues that news reports from early 2010 reporting on the risks of 

metal debris with metal-on-metal hip implants also put plaintiffs on notice of 

potential claims. See, e.g., Barry Meier, As Use of Devices Grows, Studies Raise 

Concerns, N.Y. TIMES, Mar. 4, 2010.2

 More news reports followed DePuy’s August 

2010 recall of two ASR metal-on-metal hip implants. See, e.g., Natasha Singer, 

Hip Implants Are Recalled by J. & J. Unit, N.Y. TIMES, Aug. 27, 2010.3

Last, Biomet contends that the FDA notified the public when it launched 

two websites discussing potential health risks of metal-on-metal hip implants by 

February 10, 2011. See Concerns about Metal-on-Metal Hip Implant Systems, 

FOOD & DRUG ADMIN. (last updated Feb. 10, 2011), 

https://web.archive.org/web/20110214064145/http://www.fda.gov/MedicalD

 

a Variety of Systemic Cell Lines, 81 ACTA ORTHOPAEDICA 756 (2010); Monika Huber et al., 

Postmortem Study of Femoral Osteolysis Associated with Metal-on-Metal Articulation in 

Total Hip Replacement, 92 J. BONE & JOINT SURGERY 1720 (2010); Takao Imanishi et al., 

Serum Metal Ion Levels after Second-Generation Metal-on-Metal Total Hip Arthroplasty, 

130 ARCHIVES ORTHOPAEDIC & TRAUMA SURGERY 1447 (2010); Ajay Malviya et al., Metalon-Metal Total Hip Arthroplasty, 92 J. BONE & JOINT SURGERY 1675 (2010); Michael C. 

Parry et al., Thresholds for Indirect DNA Damage Across Cellular Barriers for Orthopaedic 

Biomaterials, 31 BIOMATERIALS 4477 (2010). 

2 See also Barry Meier, When New Hips Go Bad, N.Y. TIMES, Mar. 4, 2010; Barry Meier, 

Alert Follows Withdrawal Of Hip Device, N.Y. TIMES, Mar. 10, 2010; Harvard Health 

Letters, Hip Replacement Candidates Have Several Surgical Options, SUN-SENTINEL, Mar. 

24, 2010; Sue Scheible, You Don’t Have to Be Old to Get a New Knee, Hip or Shoulder, 

NEB. CITY NEWS-PRESS, Apr. 5, 2010; Peter Benesh, Stryker Promotes Hip Technology, 

INVESTOR’S BUS. DAILY, Apr. 16, 2010.

3 See also Jonathan D. Rockoff & Jon Kamp, J&J’s Latest Recall: Hip-Repair Implants, 

WALL ST. J., Aug. 27, 2010; Nora Tooher, Litigation Mounts over DePuy Hip Replacement 

Device, LAWYERS WEEKLY USA, Oct. 4, 2010; Nelson Daranciang, Woman Sues over Hip Implant 

Device, HONOLULU STAR-ADVERTISER, Oct. 27, 2010; Steve Daniels & Silvia Gambardella, Hip 

Implant Recalled Amid Concerns About Heart Failure, Dementia, ABC NEWS, Dec. 1, 2010; Barry 

Meier, The Implants Loophole, N.Y. TIMES, Dec. 17, 2010; Barbara Peters Smith, The Enemy 

Within, SARASOTA HERALD TRIB., Dec. 21, 2010.
5 

evices/ProductsandMedicalProcedures/ImplantsandProsthetics/MetalonMetal

HipImplants/ucm241604.htm; Information for Patients Who Have Metal-on-Metal 

Hip Implants, FOOD & DRUG ADMIN. (last updated Feb. 10, 2011), 

https://web.archive.org/web/20110528045143/http://www.fda.gov/MedicalD

evices/ProductsandMedicalProcedures/ImplantsandProsthetics/MetalonMetal

HipImplants/ucm241766.htm. These websites warned that metal-on-metal hip 

implants might leave debris that could damage bones and tissue surrounding 

the implant, and encouraged people to contact their physicians if they 

experienced any symptoms. Biomet argues that the combined effect of the 

Instructions for Use, journal articles, press reports, and FDA warnings would 

have put a reasonable person on notice of the connection between Biomet’s 

device and an injury from exposure to metal and metal debris no later than 

February 10, 2011. 

Three district court decisions in MDL dockets inform Biomet’s analysis. In 

In re Avandia Marketing, Sales Practices and Products Liability Litigation, Judge 

Rufe held that a bar date was appropriate because the cumulative effect of 

publicity about a prescription drug’s relationship to adverse cardiovascular 

events was sufficient, as a matter of law, to put an individual who had been 

injured on notice that Avandia could be to blame. No. 07-MD-01871, 2012 WL 

3205620, at *4 (E.D. Pa. Aug. 7, 2012). This publicity included: 

1. a New England Journal of Medicine study finding that Avandia 

increased the risk of heart problems by forty-three percent; 
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2. a joint statement from the American College of Cardiology, the American 

Diabetes Association, and the American Heart Association expressing 

concern and advising patients to speak to their physicians; 

3. an FDA advisory committee conclusion that Avandia increased heart 

risk; 

4. FDA action requiring that a warning be added to Avandia’s label; 

5. the drug manufacturer sending letters to healthcare professionals on 

studies linking Avandia and heart health; 

6. the drug manufacturer publishing a “Dear Patient” letter about the risks 

of heart problems; 

7. a wave of media attention following the above, including lead stories on 

the national nightly news; and 

8. numerous lawsuits filed against the drug manufacturer, leading to the 

formation of the MDL. 

Id. at *3. Evidence that Avandia prescriptions dropped by forty-five percent and 

sales by fifty-four percent as of the proposed bar date showed that these events 

“were regarded as significant by physicians, patients, and attorneys.” Id. at *4. 

In an MDL docket involving Vioxx, Judge Fallon applied a bar date to 

multiple plaintiffs based on: 

1. a medical study finding that Vioxx triggered a significant increase in 

abnormal cardiovascular events; 

2. media reports linking Vioxx to cardiovascular risks; 
7 

3. a new Vioxx label that the manufacturer submitted, the FDA approved, 

and resulted in substantial press coverage; 

4. filing of a class action; and 

5. the manufacturer removing Vioxx from the market, triggering “arguably 

the largest and most-publicized prescription drug withdrawal in this 

country's history.” 

In re Vioxx Prods. Liab. Litig., 522 F. Supp. 2d 799, 803, 808, 814 (E.D. La. 

2007). The court held that “[b]oth the national and local media coverage of the 

withdrawal of Vioxx from the market were sufficient to put the plaintiffs on notice 

of a potential link between their alleged injuries and the use of Vioxx.” Id. at 808. 

In the Zyprexa litigation, Judge Weinstein held that a bar date was 

appropriate when: 

1. the FDA announced it would require an additional warning on the drug’s 

label; 

2. leading medical associations issued a consensus statement concluding 

that Zyprexa posed a risk; and 

3. the drug manufacturer distributed a “Dear Doctor” letter to physicians 

nationwide informing them of the label change. 

In re Zyprexa Prods. Liab. Litig., 727 F. Supp. 2d 101, 107 (E.D.N.Y. 2010); see 

also Burrell v. Astrazeneca LP, No. CIV.A. 07C01412(SER), 2010 WL 3706584, 

at *6 (Del. Super. Sept. 20, 2010) (establishing a bar date in litigation regarding 

Astrazeneca’s Seroquel). 
8 

I can’t say that, as a matter of law, the notice to a reasonable plaintiff of a 

potential claim against Biomet approached what happened in the Avandia, Vioxx 

and Zyprexa cases. First, in both the Avandia and Zyprexa cases, the 

manufacturer published or distributed letters alerting patients or physicians to 

the risks associated with the product. This would have been the simplest way for 

Biomet to put all of its customers on notice of a potential claim, and Biomet 

chose not to do so. 

Second, two of the three cases included substantially more press coverage 

than that surrounding Biomet. For example, in the Vioxx case, Judge Fallon 

noted that the press coverage was “arguably the largest and most-publicized 

prescription drug withdrawal in this country's history.” In re Vioxx Prods. Liab. 

Litig., 522 F. Supp. 2d at 803. In addition, the coverage in Vioxx was the result 

of the company pulling its product from the market. Biomet didn’t opt to make 

such a clear signal to consumers of its product’s potential risk. 

Third, two of the three cases included statements from leading medical 

associations highlighting risks associated with the product. Biomet points to no 

such statements here. 

Fourth, Biomet doesn’t demonstrate how a reasonable plaintiff would have 

seen or understood the Instructions for Use that Biomet argues should have put 

her on notice. They’re directed to the operating surgeon, not the patient. While 

the Instructions for Use caution about “histological reactions involving various 

sizes of macrophages and fibroblasts,” they then backtrack, explaining that 

“similar changes may occur as a precursor to or during the healing process.” 
9 

They explain that “[p]articulate wear debris and discoloration from metallic and 

polyethylene components of joint implants may be present in adjacent tissue or 

fluid,” which could “result[ ] in osteolysis.” They explain a report associating 

articulating surfaces and “increased genotoxicity.” They also add necessary 

caveats, that the report “did not assess either the clinical relevance of the data 

or make any definite conclusions as to which metal ions or interactions . . . might 

be responsible for the observed data,” cautioning that “an association does not 

necessarily mean a causal relationship.” Biomet might show how a reasonable 

surgeon would have been aware of the product’s risks, but doesn’t show how a 

reasonable plaintiff should have seen or understood the document. 

Last, in two of the three cases, either a class action had been filed or an 

MDL formed, with the consequent publicity and attorney advertising. The Biomet 

MDL wasn’t formed until well over a year after Biomet’s proposed bar date. 

Under even the most liberal construction of the states’ “discovery rules,” 

Biomet doesn’t show that these materials would’ve had the cumulative effect of 

putting all plaintiffs on constructive notice of a potential claim by February 10, 

2011. Biomet’s knowledge that it possessed by the proposed bar date can’t be 

attributed to the reasonable plaintiff. Biomet didn’t target information to patients 

notifying them of the possible risks or demonstrate that reasonable plaintiffs are 

reading medical journals or the FDA website. Without a torrent of press coverage 

surrounding a decision to pull the product from the market or to change its label, 

Biomet hasn’t shown that a reasonable plaintiff would know of a potential claim. 

I decline Biomet’s request to establish a February 10, 2011, bar date. 
10 

III. MR. GUYNN’S BACKGROUND

Marion Guynn received a Biomet M2a-38 implant in Arkansas in April 

2004. The next month he returned to the hospital after some mental status 

changes, and was found to be hypotensive with an elevated white blood count, 

indicating that he had an infection. He underwent a revision surgery, in which 

the femoral head of the hip implant was replaced, and he was treated with 

irrigation and debridement for the infection. In September 2004, to treat another 

infection, the implant was replaced with a temporary antibiotic spacer. Less than 

three years later, in August 2007, Mr. Guynn had another revision to treat an 

infection, and this time the femoral head and acetabular cup were replaced with 

components made by Zimmer. He had a final revision surgery in October 2007. 

Mr. Guynn contacted an attorney in response to a television commercial in 2014 

and filed suit in August 2014. 

IV. CHOICE OF LAW

When a case is filed directly in the MDL transferee court, the court applies 

the law, including choice-of-law rules, of the state where the case originated. 

E.g., In re Watson Fentanyl Patch Prods. Liability Litig., 977 F. Supp. 2d 885, 

888 (N.D. Ill. 2013). It’s “appropriate to treat a foreign direct-filed case as if it 

had been filed in the state where the plaintiff purchased and was prescribed the 

subject [product].” Id. (internal quotations omitted). The implant was purchased 

and prescribed in Arkansas, so Arkansas law governs. Under Arkansas law, 
11 

statutes of limitations are procedural, and so Arkansas courts apply Arkansas 

statutes of limitations, Middleton v. Lockhart, 139 S.W.3d 500, 502-503 (Ark. 

2003), as will I. 

V. DISCUSSION

Under the Arkansas Product Liability Act, “[a]ll product liability actions 

shall be commenced within three (3) years after the date on which the death, 

injury, or damage complained of occurs.” Ark. Code Ann. § 16-116-203. This 

limitations period governs Mr. Guynn’s strict products liability claims and also 

his claims based on negligence, Fields v. Wyeth, Inc., 613 F. Supp. 2d 1056, 

1059 (W.D. Ark. 2009), and breach of warranty, see § 16-116-202(5); Follette v. 

Wal-Mart Stores, Inc., 41 F.3d 1234, 1236 (8th Cir. 1994) (“[T]he three-year 

statute of limitations found in the Product Liability Act governs a breach-ofwarranty suit when damages for personal injury are sought.”); IC Corp. v. Hoover 

Treated Wood Prods., Inc., 385 S.W.3d 880, 885 (Ark. Ct. App. 2011).4 “[I]n 

product liability cases, the statute of limitations under § 16-116-[2]03 does not 

commence running until the plaintiff knew or, by the exercise of reasonable 

 

4 A “product liability action” “includes all actions brought for or on account of personal injury . . 

. caused by or resulting from the manufacture, construction, design, formula, preparation, 

assembly, testing, service, warning, instruction, marketing, packaging, or labeling of any 

product.” § 16-116-202(5) (emphasis added). The court agrees with the Fields court’s analysis 

that “a ‘product liability action’ is defined not by the substantive legal theory under which the 

plaintiff proceeds, but rather by the factual scenario that gives rise to the plaintiff’s claim and 

the injury that results from the conduct of the defendant.” Fields v. Wyeth, Inc., 613 F. Supp. 2d 

at 1059. On these grounds, the same limitations period applies to Mr. Guynn’s strict products 

liability, negligence, and breach of warranty claims, even without an express holding of the 

Arkansas Supreme Court to that effect. See Comm’r v. Bosch, 387 U.S. 456, 465 (1967). 
12 

diligence, should have discovered the causal connection between the product 

and the injuries suffered.” Martin v. Arthur, 3 S.W.3d 684, 690 (Ark. 1999). 

How much did Mr. Guynn need to know for the limitations period to run? 

To trigger the limitations period, discovery of the “full extent of the harm is not 

required; indeed, the manifestation of the nature of the harm done . . . may be 

slight.” Id. It’s enough that the plaintiff has information that creates “more than 

a mere suspicion” of the cause of the injury, IC Corp. v. Hoover Treated Wood 

Prods., Inc., 385 S.W.3d at 884, that he had enough to know of “the connection 

between the product and [ ] the ‘nature of the harm.’” Robinson v. Mine Safety 

Appliances Co., 795 F.3d 879, 881 (8th Cir. 2015). 

The continual need for revision surgeries to address infections in his hip 

and to replace components of the hip implant shows there’s no genuine dispute 

that Mr. Guynn knew or reasonably should have known of “the connection 

between” the hip implant and his ongoing infections. Id. Within three and a half 

years, Mr. Guynn received the hip implant and had four revision surgeries. Each 

revision addressed infections in the hip, more than once through replacing 

components of the implant. 

But a reasonable jury could find from these facts that Mr. Guynn, an 

elderly patient even in 2004 when his implant was removed, had no basis on 

which to suspect that his implants were causing metallosis. A reasonable jury 

could find that if anything, after repeated revision surgeries that opened the hip 

area to the surgeons’ view, Mr. Guynn had reason to believe metallosis wasn’t 

his problem. A reasonable juror could find that Mr. Guynn didn’t know of any 
13 

connection between the implant and his metallosis before 2014. For the same 

reasons, no summary judgment can be made for Biomet on the breach of 

warranty claim, which is governed by a three-year statute of limitations. Ark. 

Code Ann. § 16-116-102(5). 

VI. CONCLUSION

Based on the foregoing, the court DENIES Biomet’s motion for summary 

judgment [Doc. No. 118]. 

 SO ORDERED.

ENTERED: March 26, 2017 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court