UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

LINDA BROWN, ) 

 ) 

 Plaintiff ) 

 ) 

v. ) Cause No. 3:14-CV-1470 RLM-MGG 

 ) 

BIOMET ORTHOPEDICS, LLC,) 

 ) 

 Defendant ) 

OPINION AND ORDER 

Linda Brown sued Biomet for damages in connection with the alleged 

failure of her Biomet hip implant. Biomet moved for summary judgment, arguing 

that all of her claims are time-barred by the applicable statutes of limitations 

based on (1) a proposed date on which all plaintiffs were on constructive notice 

of potential claims and (2) facts specific to Ms. Brown. For the reasons stated 

below, I will grant Biomet’s 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 Ms. Brown, 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, Ms. Brown 

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 [her] 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 Magnum metal-on-metal hip implant. As Biomet sees 

it, if a plaintiff was injured on or before February 10, 2011, the statute of 
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limitations would begin to run then. If a 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 Instructions 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 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 the 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; 
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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 have had the cumulative effect 

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

10, 2011. What Biomet knew 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. 
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III. MS. BROWN’S BACKGROUND

 Ms. Brown received an implant in her left hip on November 3, 2009. The 

operative report indicated that Biomet manufactured three of the four implanted 

components, and listed the fourth as manufactured by DePuy, but Ms. Brown’s 

surgeon reportedly informed her that she would be implanted with a DePuy 

metal-on-metal device. After Ms. Brown began experiencing pain in her left hip, 

she visited a physician in June 2010 and was diagnosed with a “loose total joint.” 

The implant was removed during revision surgery on March 6, 2012, and 

replaced by an implant with a polyethylene liner and ceramic head. 

 In March 2012, shortly after her revision surgery, Ms. Brown contacted an 

attorney to represent her in an action to recover damages caused by her hip 

implant. On, on November 9, 2012, she filed suit against DePuy and Johnson & 

Johnson. 

 At some point in the course of that litigation, Ms. Brown became aware of 

the fact that it was a Biomet component that had failed. She filed this suit against 

Biomet on April 11, 2014. 

IV. CHOICE OF LAW

 Ms. Brown’s complaint was originally filed in the Eastern District of 

Louisiana, and is governed by Louisiana choice of law rules. See In re Watson 

Fentanyl Patch Prod. Liab. Litig., 977 F. Supp. 2d 885, 888 (N.D. Ill. 2013) 

(recognizing that the “choice of law rules that apply are those of the state where 
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the case originated”). Under those rules, Louisiana law provides the statute of 

limitations on Ms. Brown’s claims. See La. Civ. Code Ann. Art. 3549 (“when the 

substantive law of this state would be applicable to the merits of an action 

brought in this state, the prescription and preemption law of this state applies”). 

 

V. DISCUSSION

A. Louisiana Product Liability Act Claims

 Claims under Louisiana’s Product Liability Act must be brought within one 

year from the date of injury. La. Civ. Code Ann. Art. 3492. “[T]he mover bears 

the burden of proving prescription”, but “if the petition is prescribed on its face, 

then the burden of proof shifts to the Plaintiff to negate the presumption by 

establishing a suspension or interruption.” Taranto v. Louisiana Citizens Prop. 

Ins. Corp., 62 So. 3d 721, 726 (La. 2011); Raborn v. Albea, 144 So. 3d 1066, 

1071, (La. Ct. App. 2014). 

 Ms. Brown filed this complaint in April 2014, more than four years after 

the device was implanted ikn November 2009, and more than a year after her 

March 2012, revision surgery, the latest possible date of her injury. Her product 

liability claims are untimely, unless she can prove that the statute of limitations 

was tolled. Ms. Brown asserts that it was tolled under Louisiana’s version of the 

discovery doctrine, the contra non valentem doctrine, because she reasonably 

relied on her doctor’s statement that she was implanted with a DePuy device. 

 The contra non valentem doctrine “is based on the theory that when the 

claimant is not aware of the facts giving rise to his or her cause of action against 
12 

the particular defendant, the running of prescription is . . . suspended until the 

tort victim discovers or should have discovered the facts upon which his or her 

cause of action is based.” In re Med. Review Panel of Howard, 573 So. 2d 472, 

474 (La. 1991). “Prescription does not run against one who is ignorant of the 

facts upon which his cause of action is based, as long as such ignorance is not 

willful, negligent[,] or unreasonable.” Id. “When prescription begins to run 

depends on the reasonableness of a plaintiff’s action or inaction . . . in light of 

plaintiff’s own information and the diagnoses [she] received.” Raborn v. Albea, 

144 So. 3d at 1072. Under Louisiana law, the limitations period is tolled if the 

plaintiff “reasonably relied on her treating physician regarding the cause” of the 

injury. Lapuyade v. Rawbar, Inc., 190 So. 3d 1214, 1224 (La. Ct. App. 2016). 

 Ms. Brown filed her first lawsuit against DePuy and Johnson & Johnson 

on November 9, 2012, because she thought that DePuy manufactured her hip 

implant. But her own medical records state that three out of the four components 

implanted were manufactured by Biomet. [Doc. No. 145-2]. A reasonable 

investigation into the facts that formed the basis of Ms. Brown’s claims would 

have revealed the true identity of the manufacturer, before the suit was filed. But 

Ms. Brown waited seventeen months after filing suit against DePuy and 

Johnsons & Johnson to sue Biomet. Because Ms. Brown could and should have 

discovered that a Biomet device allegedly caused her injuries by on or before 

November 9, 2012, the contra non valentem doctrine doesn’t save her facially 

untimely claims. 
13 

Ms. Brown says her complaint against Biomet should relate back to the 

date she filed her complaint against DePuy and Johnson & Johnson under La. 

Code Civ. Proc. Ann. Art. 1153. The Louisiana Supreme Court developed the 

following criteria to determine whether La. Civ. Code Ann. Art. 1153’s relation 

back doctrine applies when the defendants are modified by an amendment to the 

complaint: 

(1) The amended claim must arise out of the same transaction or 

occurrence set forth in the original petition; (2) The purported 

substitute defendant must have received notice of the institution of 

the action such that he will not be prejudiced in maintaining a 

defense on the merits; (3) The purported substitute defendant must 

know or should have known that but for a mistake concerning the 

identity of the proper party defendant, the action would have been 

brought against him; (4) The purported substitute defendant must 

not be a wholly new or unrelated defendant, since this would be 

tantamount to assertion of a new cause of action which would have 

otherwise prescribed. 

Renfroe v. State ex rel. Dep't of Transp. & Dev., 809 So. 2d 947, 950–951 (La. 

2002). 

 Ms. Brown’s complaint against Biomet doesn’t meet those requirements. 

It’s not an amended complaint correcting a misnomer or substituting the true 

party in interest, but rather a new complaint filed against a new and unrelated 

defendant. Biomet didn’t receive notice of the original action, and, contrary to 

Ms. Brown’s assertion, would be prejudiced by allowing her to go forward with 

her lawsuit now. 

B. Redhibition Claim 
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 Biomet seeks summary judgment on Ms. Brown’s redhibition claim, 

contending that it too is barred by Louisiana’s one-year statute of limitations, 

La. Civ. Code Ann. Art. 2534(2)(B). Ms. Brown didn’t contend otherwise, and so 

waived any argument that her redhibition claim was timely. See Laborers' Int'l 

Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (recognizing that 

arguments not raised in response to a summary judgment motion are waived). 

VI. CONCLUSION

For the foregoing reasons, Biomet’s motion for summary judgment [Doc. 

No. 137] is GRANTED. 

 SO ORDERED.

ENTERED: March 26, 2017 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court