UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

GEORGE MAROUS, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Cause No. 3:14-cv-768 RLM-MGG 

 ) 

BIOMET, INC., et al., ) 

 ) 

 Defendants. ) 

***************************************** 

YOLANDA CHISOLM, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Cause No. 3:14-cv-1647 RLM-MGG 

 ) 

BIOMET, INC., et al., ) 

 ) 

 Defendants. ) 

***************************************** 

JOSEPH CECIL, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Cause No. 3:14-cv-1712 RLM-MGG 

 ) 

BIOMET, INC., et al., ) 

 ) 

 Defendants. ) 

***************************************** 

JERRY AND SUSAN BAUMAN, ) 

 ) 

 Plaintiffs, ) 

 ) 

v. ) Cause No. 3:14-cv-1783 RLM-MGG 

 ) 

BIOMET, INC., et al., ) 

 ) 

 Defendants. ) 

***************************************** 

NINA GLASSER, ) 
2 

 ) 

 Plaintiff, ) 

 ) 

v. ) Cause No. 3:14-cv-2057 RLM-MGG 

 ) 

BIOMET, INC., et al., ) 

 ) 

 Defendants. ) 

***************************************** 

WILLIAM C. WHITEN, as Personal ) 

Representative of the Estate of ) 

VIRGINIA BAKER, Deceased, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Cause No. 3:15-cv-147 RLM-MGG 

 ) 

BIOMET, INC., et al., ) 

 ) 

 Defendants. ) 

OPINION AND ORDER 

Each of these plaintiffs received Biomet M2a Magnum, M2a-38 or M2a 

Taper metal-on-metal hip implants, and sues Biomet for injuries stemming from 

alleged defects in the product. Biomet moves for summary judgment, arguing 

that because none of the plaintiffs preserved the explanted device, each should 

be sanctioned with dismissal. The court disagrees. 

I. BACKGROUND

Early in the multi-district litigation related to the Biomet M2a hip 

implants, I ordered “[a]ll parties [ ] to take reasonable steps to preserve 

documents and other records (including electronic documents) containing 
3 

information potentially relevant to the subject matter of this litigation.” Pretrial 

Order #1 ¶ 13, Oct. 12, 2012 [3:12-md-2391, Doc. No. 3]. 

On March 7, 2013, I issued an “Explant Preservation Order” requiring 

preservation of M2a devices removed from plaintiffs during revision surgeries, 

thus aiding in proving or disproving causation of injuries. The order imposes the 

following obligations: 

 “A plaintiff shall make good faith efforts to ensure that non-party 

medical practitioners, hospitals, and vendors . . . preserve his or her 

Explanted M2a Devices . . . .” Explant Pres. Order § VI, Mar. 7, 2013 [3:12-

md-2391, Doc. No. 279]. 

 “With respect to M2a Devices that have not yet been explanted or 

have been explanted but are not in either party’s possession, counsel for 

a plaintiff may elect to obtain plaintiff’s Explanted M2a Device from 

plaintiff’s surgeon or the hospital where the surgery occurred and send it 

to a contract laboratory of plaintiff’s choice or a designated storage facility. 

If plaintiff’s counsel does not elect to obtain an Explanted M2a Device 

within 60 days of the revision surgery, Biomet will make arrangements for 

it to be sent to Malcolm Naylor of Biomet in Warsaw, Indiana.” Id. § III(A). 

 Each party must notify the other if that party has the explanted 

device in its possession prior to the date of the order. Id. § III(B). 

 Each party must handle the explanted device in accordance with a 

Retrieval Analysis Protocol described in the order or a procedure that’s 
4 

consistent with methods and practices accepted by those in the field of 

inspection and testing of orthopaedic devices. Id. § II. 

 Each party in possession of the explanted device shall make the 

device available to the other party after inspection and testing. Id. § III(C). 

Before the start of the MDL, the FDA used its powers under Section 522 

of the Federal Food, Drug, and Cosmetic Act to require Biomet to conduct a 

postmarket surveillance study. Biomet had to submit a plan to conduct 

surveillance that would identify “the modes and causes of failure based on 

analysis of [Biomet’s] reasonably available explanted retrieved devices.” 

A. George Marous, 3:14cv768 

George Marous was implanted with a Biomet M2a-Magnum hip implant. 

He contacted a law firm in December 2012 about problems with the implant and 

spoke to a paralegal there, who referred him to his current counsel. In April 2013 

Mr. Marous underwent revision surgery. Before the surgery he signed a form 

consenting to disposal “of any tissues, parts, or organs which may be removed.” 

In an affidavit, he says that he requested the explant components before going 

into surgery. He and his wife say in affidavits that she spoke to the surgeon after 

surgery about retrieving the explant, but the surgeon said the request couldn’t 

be fulfilled because bone was attached. At his deposition, Mr. Marous says he 

didn’t know he could ask the hospital to preserve the explant. Joe Richardson, 

Jr., an independent contractor for “Biomet Mid Ohio,” a Biomet distributor, was 
5 

present at the surgery. He says he was never instructed to retrieve the explanted 

device and didn’t do anything to retrieve it. 

Mr. Marous hired his current counsel in May 2013. They represent that 

they made an effort to contact the hospital’s Department of Pathology after the 

revision to retrieve the explanted device, but the department said it never 

received the device. Mr. Marous filed suit in this court in April 2014. 

B. Yolanda Chisolm, 3:14cv1647 

Ms. Chisolm was implanted with a Biomet M2a-38 hip implant. In March 

2014, her doctor told her that she needed revision surgery, tested high for cobalt 

and chromium, and suffered bone loss. Ms. Chisolm says that at this time she 

was aware of lawsuits involving Biomet and metal-on-metal hip implants. 

According to interrogatories, she first contemplated hiring an attorney in 

February 2014, and she first contacted an attorney at the end of March 2014. 

She filed suit against Biomet in North Carolina state court in April 2014, 

before her revision surgery the following month. Before revision, she signed a 

form authorizing her “physician, other practitioners and the Hospital [to] 

examine any organs, tissues, other body parts or foreign bodies that are removed 

from [her] during the Surgery and [to] ke[ep], use[ ] and save[ ] [them] for 

scientific, educational or research purposes or dispose[ ] of [them] according to 

Hospital policies.” Eric Owens, a Biomet sales representative, was present at the 

revision surgery. Ms. Chisolm says she doesn’t know what happened to the 

device after it was removed from her. 
6 

After the revision surgery, Biomet removed the case to federal court, and 

it was then transferred to this court as part of this MDL docket. 

C. Joseph Cecil, 3:14cv1712 

Joseph Cecil was implanted with a Biomet M2a-Taper hip implant in 2005. 

In 2013 his doctor told him that he suffered from metallosis and needed revision 

surgery. Mr. Cecil says that at that time he wasn’t aware of litigation and possible 

defects in metal-on-metal hip implants. Later that year, Mr. Cecil considered 

hiring an attorney. About two weeks before his revision surgery, he learned about 

problems with the DePuy and Stryker hip implants and went to a law firm. At 

that point, he says, he believed his injury was the result of his hip implant. 

At the request of Mr. Cecil’s wife, he signed a “Release of Specimens or 

Other Items” form, in which he requested that the “Left Hip Implant (Socket)” not 

be destroyed after surgery, but be released into his possession. Mr. Cecil 

underwent revision surgery in December 2013 and the hip implant was removed. 

After the revision surgery, Mr. Cecil never heard whether the hospital actually 

preserved that portion of the device, and neither he nor his wife ever received it. 

Mr. Cecil didn’t follow up to see that the device was preserved or delivered to 

him, and he said he only learned that the explanted component hadn’t been 

preserved on the day before his deposition. 

He filed suit in federal court in Kentucky in April 2014 and the case was 

transferred to this court as part of this MDL docket. 
7 

D. Jerry Bauman, 3:14cv1783 

Jerry Bauman was implanted with a Biomet M2a Magnum hip implant in 

2008. After one and a half to two years with the device, Mr. Bauman began to 

experience pain and noticed a clicking sound in his hip. In late 2012, he met 

with a surgeon who recommended a revision surgery, explaining that the device 

wasn’t positioned correctly and that he showed signs of a pseudotumor. Before 

undergoing the revision, Mr. Bauman signed a form that, among other things, 

authorized “disposal of any blood, fluid, specimen, or tissues which may be 

removed” during the surgery. The revision surgery took place in December 2012, 

and the device was removed. During his deposition, when asked what happened 

to the device after it was removed, Mr. Bauman said he didn’t know. 

In 2014 Mr. Bauman filed his complaint and joined this MDL docket. 

E. Nina Glasser, 3:14cv2057 

Nina Glasser was implanted with a Biomet M2a-Magnum hip implant in 

2007. In January 2014, Ms. Glaser had her first revision surgery, during which 

the device’s femoral head was replaced with a non-Biomet part. Ms. Glasser 

asked the doctor for the explanted part and the doctor gave it to her in a plastic 

bag provided by the hospital. Ms. Glasser left the plastic bag containing the part 

in a shopping bag in the bottom of her closet. In explaining why she asked for 

the explanted part, Ms. Glasser said: “I figured I paid for it. I wanted it.” 

Ms. Glasser underwent a second revision surgery in April 2014, during 

which the femoral head was replaced again with a Biomet part. After the second 
8 

revision, Ms. Glasser said she became aware of potential problems with metalon-metal hip implants when she saw on television that certain implants had 

been recalled. She called her doctor about the recall and found out that the recall 

didn’t apply to Biomet devices. She said she thought about contacting an 

attorney and contacted the firm that represents her now in May 2014. 

Ms. Glasser underwent her final revision on July 2014, during which the 

acetabular cup was replaced. Before this revision, Ms. Glasser signed a form 

providing her consent to “disposal [of the explanted parts] according to the 

hospital policies and the recommendations of the physician.” Biomet doesn’t 

present evidence that she had retained an attorney by this time. 

Ms. Glasser filed suit in November 2014 in federal court in Kentucky and 

the case was then transferred to this court as part of this MDL docket. On the 

“Plaintiff Fact Sheet” Ms. Glasser returned to Biomet in May 2015, she filled out 

“NA” when asked “what is the present location of the removed components of the 

M2a Device?” She never filed an amended fact sheet to explain that she had the 

femoral head in her possession. Biomet says that Ms. Glasser only disclosed to 

Biomet that she had a third revision surgery on the date of her deposition. 

F. Virginia Baker, 3:15cv147 

Virginia Baker1 was implanted with a Biomet M2a-Magnum hip implant in 

2008. In 2012 she learned she suffered from metallosis when her doctor told her 

she had elevated cobalt and chromium levels. After seeing an advertisement for 

                                                            

1 Ms. Baker has since passed away. William Whiten is continuing the suit on behalf of her estate. 
9 

attorneys, she called and retained counsel in February 2014. In December 2014, 

Ms. Baker underwent revision surgery in which the Magnum components were 

removed. 

Before the surgery, Ms. Baker filled out a form authorizing the “physician 

or the pathologist to examine, retain for scientific and/or educational purposes, 

or dispose of all such tissues, organs, or bodily fluids that shall be removed by 

operation.” She didn’t ask the hospital to preserve the explanted device or ask to 

be able to take it home from the surgery. She said she was unaware of what 

happened to the device after surgery. Bradford Anglin, an employee of Jazz 

Medical, a Biomet distributor, attended the revision surgery. He didn’t do 

anything to preserve the device either, and said that he couldn’t because it was 

against policy. 

Ms. Baker filed suit against Biomet in the MDL docket in this court in April 

2015. 

II. STANDARD OF REVIEW

Biomet moves for summary judgment on grounds that each plaintiff’s 

failure to preserve the explanted M2a components was negligent and violated the 

preservation orders. Biomet asks the court to sanction each plaintiff with 

dismissal of her case and costs. Some of the plaintiffs ask that the court sanction 

Biomet for not preserving the device and award attorney’s fees for bringing a 

frivolous motion. 
10 

Summary judgment is appropriate when the pleadings, discovery 

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

fact, and 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 the non-moving party. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 255 (1986). As the moving party, Biomet must inform 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, a plaintiff 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 America, N,A., 662 F.3d 963, 966 (7th Cir. 2011); see also

Hastings Mut. Ins. Co. v. LaFollette, No. 1:07-cv-1085, 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”). 
11 

III. DISCUSSION

A. Rule 37 

Biomet argues that each of these plaintiffs violated the preservation orders 

when he or she didn’t preserve the explanted M2a device, and so she should be 

sanctioned with dismissal and attorneys’ fees. A court may impose sanctions, 

including dismissal of the action, on a party who disobeys a discovery order. Fed. 

R. Civ. P. 37(b)(2)(A)(v). A court also “has inherent power to sanction a party who 

has willfully abused the judicial process or otherwise conducted litigation in bad 

faith.” Secrease v. W. & S. Life Ins. Co., 800 F.3d 397, 401 (7th Cir. 2015). 

Dismissal with prejudice “is a harsh sanction which should usually be 

employed only in extreme situations, where there is a clear record of delay or 

contumacious conduct,2 or when other less drastic sanctions have proven 

unavailable.” Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992). 

To dismiss a case in response to discovery order violations under Rule 37, the 

court must find “willfulness, bad faith or fault.” Maynard v. Nygren, 332 F.3d 

462, 467 (7th Cir. 2003). “Fault” doesn’t have to do with subjective intent; rather, 

it “only describe[s] the reasonableness of the conduct—or lack thereof—which 

eventually culminated in the violation.” Langley v. Union Elec. Co., 107 F.3d 510, 

514 (7th Cir. 1997). 

At a minimum, for a plaintiff to have violated a discovery order that would 

subject her to Rule 37 sanctions, he or she must have been bound by the 

                                                            

2 “A willful disobedience of a court order.” Contumacious Conduct, Black’s Law Dictionary (7th 

ed. 1999). 
12 

discovery order when it was possible for her to comply. None of these plaintiffs 

were. 

Biomet cites no cases that support the proposition that a plaintiff is 

subject to the orders of an MDL court before that plaintiff has joined the MDL. 

Biomet cites Bennett v. Bayer Healthcare Pharmaceuticals, Inc., 577 F. App’x 

616 (7th Cir. 2014) for this proposition, but Bennett offers no such support. The 

plaintiff in that case was bound by an MDL court’s discovery order that predated 

her transfer to the MDL court, but the court order only bound her once her case 

was transferred to the MDL court and she was still able to comply. In contrast: 

None of these plaintiffs’ cases had been transferred to this court by the 

time of the revision surgery. Ms. Baker, Mr. Marous and Mr. Bauman hadn’t filed 

any case at all by the time of the revision surgery. With respect to all plaintiffs 

except Ms. Glasser, compliance with any obligation to preserve the explant 

appears to have been impossible by the time he or she joined the MDL. For Ms. 

Glasser, compliance appears to have been impossible for the device removed 

during her final revision surgery. 

Biomet cites Langley v. Union Electric Co., 107 F.3d 510 (7th Cir. 1997) 

for the proposition that spoliation before a discovery order is still sanctionable 

under Rule 37. The Langley plaintiff was sanctioned only after being uncandid 

with the court about losing evidence, and then disobeying a court order to 

produce it. Langley v. Union Elec., 107 F.3d at 514 (“Having reentered his order 

and waited in vain for the furnace, the judge imposed sanctions in March 1995. 

Because appellant was in violation of the order to produce the furnace, the 
13 

sanctioning was a perfectly legitimate exercise of power under Rule 37(b).”). The 

plaintiff also shirked arrangements with the defendant to provide the evidence. 

Id. At any rate, the court order in Langley took place only after the plaintiff’s case 

was in the relevant court. 

None of the relevant facts applies to any of these plaintiffs. None of these 

plaintiffs willfully disobeyed a court order because none was bound by a court 

order until following its directives was impossible. None of these plaintiffs 

promised to deliver the explant to Biomet, and none hid that such evidence was 

missing. 

Rule 37 is no help to Biomet because none of these plaintiffs violated a 

discovery order. The court’s discovery orders can only direct behavior of parties 

who are able to comply. As to a non-party, the court is merely shouting into a 

void, and there’s no logic in penalizing the person who doesn’t happen to hear it. 

As to the one who’s unable to comply with a discovery order that pre-dated 

transfer and has only been forthright about it, sanctions are neither just nor 

productive. See also 8B Charles Alan Wright & Arthur R. Miller, Federal Practice 

and Procedure, § 2283 (3d ed. 2016) (“[B]efore imposing a serious merits sanction 

the court should determine whether the party guilty of a failure to provide 

discovery was unable to comply with the discovery.”).3

                                                            

3 Both the Explant Preservation Order and its amended version, Am. Explant Pres. Order, Nov. 

24, 2015 [3:12-md-2391, Doc. No. 3008], define “M2a Device” as “the following Biomet M2a Hip 

System Device and components marketed and sold by defendants to plaintiffs in the United 

States: M2a Magnum and M2a 38.” Notably, neither document includes the Biomet M2a-Taper 

within the definition of “M2a Device.” The document, by its own terms, thus doesn’t cover the 

device explanted from Mr. Cecil, even though the M2a-Taper was added to the MDL about a 

month after the original Explant Preservation Order and about two and a half years before the 

amended version. 
14 

Ms. Glasser’s obligations once she took the explanted femoral head from 

her first revision surgery home are different. At the time of the revision, for the 

reasons already explained, Ms. Glasser wasn’t bound by the court’s preservation 

orders. But once the case was transferred to this MDL docket, under Bennett, 

she was obligated to follow the orders to the extent possible and, under at least 

two provisions, she didn’t meet the order’s requirements. 

Under the Explant Preservation Order, “[a] party that has an Explanted 

M2a Device in its possession shall provide notice to the other party . . . .” Explant 

Pres. Order § III(B)(1), Mar. 7, 2013 [3:12-md-2391, Doc. No. 279]. Ms. Glasser 

violated this provision by not disclosing her possession of the femoral head to 

Biomet once she joined the MDL. 

The order also requires each party to handle the explanted device in 

accordance with a Retrieval Analysis Protocol described in the order or a 

procedure that’s consistent with methods and practices accepted by those in the 

field of inspection and testing of orthopaedic devices. Id. § II. Similarly, once Ms. 

Glasser had joined the MDL and was bound by the order, it was her job to make 

sure the device was preserved appropriately, not simply left in her closet. 

Whether Ms. Glasser’s violations are enough to merit dismissal is a 

different story. Dismissal with prejudice “is a harsh sanction which should 

usually be employed only in extreme situations, where there is a clear record of 

delay or contumacious conduct, or when other less drastic sanctions have 

proven unavailable.” Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 

1992). There’s no “clear record of delay” here. There’s no evidence that Biomet 
15 

ever tried to retrieve the device from Ms. Glasser or from the hospital until it 

brought this motion, and Ms. Glasser was then perfectly forthcoming. There’s no 

evidence of “contumacious conduct” because she obtained the component before 

she was bound by the order and nothing suggests that her non-disclosure was 

more than an oversight. Her filling in “NA” on the Plaintiff Fact Sheet when asked 

about the present location of the retrieved components also doesn’t show, 

without genuine dispute, that she acted willfully. There haven’t been any lesser 

attempts to sanction her. Dismissal isn’t warranted on these grounds. 

B. Fault 

Fault is another avenue for the court to issue sanctions, even if not for 

violation of a binding discovery order under Rule 37(b), then under the court’s 

inherent powers. Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 

1992). “Fault” refers to “the reasonableness of the conduct – or lack thereof – 

which eventually culminated in the violation.” Id. “A dismissal with prejudice is 

a harsh sanction which should usually be employed only in extreme situations . 

. . .” Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir. 1993). 

Nothing suggests that any of these plaintiffs acted at all unreasonably, let 

alone to an extent justifying dismissal. Biomet provides no reason why a patient 

would think that preserving the device is a real option to her, let alone that she 

should do it to comply with a court order about which she knows nothing. Biomet 

doesn’t show that signing a paper authorizing the hospital to dispose of the 

device would be unreasonable in the circumstances. Biomet provides no evidence 
16 

that an attorney advised any of the plaintiffs to preserve the device before 

revision. Biomet provides no law imputing an attorney’s knowledge of a duty to 

preserve the device to her client. 

Mr. Marous’s affidavit about requesting the device before his surgery might 

contradict his deposition statement about not seeking preservation, but that 

possibility doesn’t provide the proof Biomet needs. If Mr. Marous tried to take 

the device home and his surgeon refused, I’m not sure why a reasonable patient 

would do anything more. 

If Mr. Cecil’s wife was proactive in seeking preservation, she took a step 

that seems extraordinary for the lay patient. Whether the hospital would simply 

provide a ‘to-go’ container for the device at the end of the surgery or send it 

sometime in the future might not have been clear. Once Mr. Cecil filed his suit, 

nothing would have stopped Biomet from requesting the device from Mr. Cecil or 

the hospital. 

Ms. Glasser’s request for the femoral head seems to be unusual only in 

that I don’t expect a reasonable patient to request the device or its preservation 

at all, and if she hadn’t it would have been lost irretrievably. Ms. Glasser can’t 

be blamed for not knowing proper methods for storing her femoral head, and she 

seems to have requested it more as a novelty item than out of a desire to preserve 

evidence for litigation. Biomet doesn’t show that then signing a paper authorizing 

the hospital to dispose of the acetabular cap was unreasonable. 
17 

C. Spoliation 

Biomet discusses Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 

681 (7th Cir. 2008) for the proposition that a spoliation sanction is proper where 

“a party has a duty to preserve evidence because it knew, or should have known, 

that litigation was imminent.” 

When a plaintiff, such as Ms. Glasser or Ms. Chisolm, contacted or 

retained an attorney before revision surgery, I might be able to infer that she 

knew litigation to be imminent at the time of surgery. Reasonable knowledge of 

imminent litigation is a necessary, not a sufficient condition for spoliation 

sanctions. Id. (“[C]ourts have found a spoliation sanction to be proper only where

a party has a duty to preserve evidence because it knew, or should have known, 

that litigation was imminent.”) (emphasis added). Another “prerequisite” for this 

route to spoliation sanctions is “bad faith,” “destruction for the purpose of hiding 

adverse information.” Id. Biomet doesn’t provide evidence that any of the 

plaintiffs intended to hide adverse information. 

Under either Rule 37 or the court’s inherent powers, Biomet doesn’t 

demonstrate that, as a matter of law, a judgment of dismissal is warranted with 

respect to any of these plaintiffs.4

                                                            

4 The court provides no answer as to whether sanctions are available under state law and leaves 

any such question to the court that receives this case on remand. See Sch. Order ¶ 4(E), Dec. 

21, 2015 [3:12-md-2391, Doc. No. 3047] (“Biomet represents that its argument . . . will be that 

a plaintiff failed to comply with this court’s preservation order included in the October 12, 2012 

order. Issues of failure to comply with a federal court’s order should pose no state law issues, 

and alleged violations of a federal court order are to be resolved by the issuing court. If a summary 

judgment motion under this paragraph should exceed these parameters, counsel should call it 

to my attention.”).
18 

D. Sanctions Against Biomet 

The plaintiffs also argue that the loss of the device was Biomet’s fault and 

that Biomet should be sanctioned with dismissal under the same principles. 

They argue that the Explant Preservation Order directs Biomet to make 

arrangements within 60 days of revision surgery for explanted devices to be sent 

to Biomet’s facility in Warsaw, Indiana. This is true, but Biomet also isn’t bound 

to comply with a discovery order from the MDL court addressing a plaintiff who’s 

not yet part of the MDL. 

Second, these plaintiffs argue that a Biomet representative was present 

during their surgeries and could have made sure the explant was preserved. 

There isn’t enough evidence to decide this fact as beyond dispute. For some, it 

wasn’t clear that a representative was present. Even when there’s no dispute 

that a representative attended, it’s not clear she had authority to take the device 

or to have it preserved. 

Third, each of the plaintiffs argues that the FDA required Biomet to 

preserve explanted components as part of its required postmarket surveillance. 

The FDA’s letter, however, only indicates that preservation is required for devices 

included in the “cross-sectional study” Biomet conducts as part of its postmarket 

surveillance plan. None of these plaintiffs provides evidence that he or she was 

part of that study. 

Biomet might have been able to act affirmatively to facilitate preservation 

of devices, for example by sending letters to doctors and customers to make sure 
19 

that devices are so preserved. That Biomet didn’t do so, however, doesn’t mean 

that it had a court-ordered duty to preserve the explants of people who weren’t 

yet parties to the MDL, or that Biomet was negligent for losing the device.5

IV. CONCLUSION

The court thus DENIES Biomet’s motions for summary judgment [3:14-

cv-768, Doc. No. 131] [3:14-cv-1647, Doc. No. 140] [3:14-cv-1712, Doc. No. 133] 

[3:14-cv-1783, Doc. No. 136] [3:14-cv-2057, Doc. No. 127] [3:15-cv-147, Doc. 

No. 119]. 

 SO ORDERED.

ENTERED: March 1, 2017 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court

                                                            

5 Ms. Chisolm and Mr. Bauman also ask that I award them attorney’s fees for the cost of 

responding to Biomet’s “baseless” motion. Those requests amount to motions that had to be filed 

separately so that Biomet had ample opportunity to respond. N.D. Ind. L.R. 7-1(a).