UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION 

DONALD WAYNE EASTMAN, ) 

) 

Plaintiff ) 

) 

v. ) CAUSE NO. 3:15-CV-585 RLM-MGG 

) 

BIOMET, INC., et al., ) 

) 

 Defendants 

OPINION and ORDER 

After their attorneys agreed on resolution of Donald Eastman’s claim 

against Biomet, Inc., Biomet sent Mr. Eastman a release to sign. Mr. Eastman 

signed the release after secretly modifying it so that the release no longer was 

designed to exempt Biomet from further claims by Mr. Eastman. Mr. Eastman 

sent the signed paper back to Biomet and received a check. Mr. Eastman cashed 

the check and retains the money, but now claims Biomet owes him more. Mr. 

Eastman and Biomet both have moved for summary judgment, and I will grant 

Biomet’s motion because neither the law nor the facts support Mr. Eastman’s 

claim. 

I. STANDARD OF REVIEW

 Summary judgment is appropriate when “the pleadings, depositions, 

answers to the interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue of material fact and that 
2 

the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). 

A genuine issue of material fact exists whenever “there is sufficient evidence 

favoring the nonmoving party for a jury to return a verdict for that party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In deciding whether 

a genuine issue of material fact exists, “the evidence of the non-movant is to be 

believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Weigle v. SPX Corp., 729 F.3d 

724, 730 (7th Cir. 2013). The existence of an alleged factual dispute, by itself, 

won’t defeat a summary judgment motion; “instead, the nonmovant must 

present definite, competent evidence in rebuttal,” Parent v. Home Depot U.S.A., 

Inc., 694 F.3d 919, 922 (7th Cir. 2012), and “must affirmatively demonstrate, by 

specific factual allegations, that there is a genuine issue of material fact that 

requires trial.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 

2007); see also FED. R. CIV. P. 56(e)(2). “[S]ummary 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.” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) 

(quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 

2005)). 

II. BACKGROUND

The Judicial Panel on Multidistrict Litigation established this MDL docket 

for claims in which plaintiffs claim personal injuries from a metal-on-metal 
3 

artificial hip that Biomet manufactured and placed into the stream of commerce. 

In January 2014, Biomet and Plaintiffs’ Executive Committee entered into a 

Master Settlement Agreement. The Master Settlement Agreement provides a 

procedure for categorizing case values and resolving disputes between individual 

plaintiffs and Biomet over the settlement payment an individual plaintiff is 

entitled to receive. 

In April 2014, Donald Eastman filed a complaint against Biomet, asserting 

that his Biomet M2a-38 hip replacement device was defective. Eastman v. 

Biomet, Inc., et al, Case No. 3:14-cv-00771-RLM-CAN. Mr. Eastman and Biomet 

agreed to settle that suit, and in February 2015, Mr. Eastman signed a 

confidential release of all claims confirming the agreement and fully and 

completely releasing all claims against Biomet. 

The release says Mr. Eastman "shall receive the sum of $25,000.00.” The 

release also included Mr. Eastman’s acknowledgment that the $25,000 “shall 

constitute the full compensation which will ever be paid to [Mr. Eastman] by 

[Biomet].” After Mr. Eastman executed the release, Biomet paid him $25,000. 

Mr. Eastman admits that payment was deposited into the trust account of Mr. 

Singleton, Mr. Eastman’s counsel of record in that suit. The parties filed a 

stipulation of dismissal signed by Mr. Singleton [Doc. No. 59], and I ordered 

dismissal with prejudice [Doc. No. 60]. 

Mr. Eastman now says he “conditionally signed” the release that Biomet 

drafted, asserting that it didn’t “absolve Biomet from future claims on damages,” 

and that Biomet is in breach by offering and awarding Eastman a settlement 
4 

much lower than the amount stipulated in paragraph 2 of the Master Settlement 

Agreement. Mr. Eastman made several changes to the signed release’s terms 

before Mr. Singleton sent it to Biomet: 

• he changed “irrevocable” to “revocable” in Paragraph 5;

• he changed “binding” to “nonbinding” in Paragraph 8j; and

• he changed “Indiana” to “Arkansas” in the choice of law provision.

Mr. Eastman says he made those changes to protect his right to sue Biomet in 

the future for breaching the Master Settlement Agreement. Biomet argues that 

the parties stipulated to dismissal without Mr. Eastman or his counsel telling it 

of any changes. 

Two months after I dismissed the first suit, Mr. Eastman filed this case 

without an attorney in the western district of Arkansas, contending that Biomet 

breached the parties' settlement agreement by paying him only $25,000 rather 

than $200,000. The Judicial Panel on Multidistrict Litigation transferred the new 

case to the MDL, and in April 2016, I denied Mr. Eastman’s motion for remand 

[Doc. No. 56]. In April 2017, I granted Biomet leave to file a motion for summary 

judgment [Doc. No. 104]. 

III. DISCUSSION

A. Choice of law

Biomet argues in its cross-motion that Arkansas and Indiana law aren’t in 

conflict as it relates to general rules of contract interpretation. Although 

Biomet’s assertions are correct, Indiana law governs under the terms of the 
5 

Master Settlement Agreement, despite whether Mr. Eastman made any changes 

to the release. Paragraph 15 of the Master Settlement Agreement provides in 

part: 

(f) in case any provision, or any part of any provision, contained in

this Settlement Agreement shall for any reason be held to be invalid,

illegal, or unenforceable in any respect . . .

(g) the Parties agree that this Settlement Agreement shall be

interpreted in accordance with the laws of the State of Indiana

. . . .

[Doc. No. 1317-1] (emphasis added). 

Mr. Eastman says he “reserved his right to sue for damages” under the 

Master Settlement Agreement, but attempted changes to the choice of law 

provision doesn’t affect the terms of the Master Settlement Agreement. Indiana 

law governs, and no choice-of-law analysis is necessary. 

A. Breach of the Master Settlement Agreement

Mr. Eastman says Biomet breached the Master Settlement Agreement by 

offering and awarding him a settlement well below than the amount stipulated 

in paragraph 2 of the Master Settlement Agreement. Mr. Eastman argues that 

he “conditionally signed” and made a few changes to terms in the release to 

ensure he didn’t “absolve Biomet from future claims on damages.” So when Mr. 

Eastman replaced the word “irrevocable” with “revocable,” he explains, the 

amended release became a counteroffer, demonstrating that Mr. Eastman didn’t 

intend to waive his right to make future claims against Biomet under the Master 

Settlement Agreement. 
6 

Mr. Eastman argues that paragraph 2 of the Master Settlement Agreement 

bound Biomet to settle his claims for $200,000. Mr. Eastman says Biomet didn’t 

have good cause to discount his settlement award. Paragraph 2 of the Master 

Settlement Agreement provides in relevant part: 

Paragraph 2 Eligibility and Compensation Plaintiffs who 

have received a Biomet M2a Magnum hip replacement system as 

part of an initial hip replacement that was revised more than 180 

days after it was implanted shall receive a base award of 

$200,000.00 subject to any discounts as set forth in paragraph (b) 

below. 

[Doc. No 1317]. 

Mr. Eastman says he is eligible for the base award of $200,000 because 

his revision surgery took place 1,652 days after the initial implant, and his 

eligibility isn’t subject to any of the discounts or deductions of his base award. 

The Ouachita County Medical Center provided evidence of metallosis (or a “MoM 

injury”) when it tested Mr. Eastman’s blood and urine. This evidence, Eastman 

asserts, entitles him to the entire $200,000. 

Paragraph 3(b) allows Biomet to reduce an award for “good cause,” and 

provides in relevant part: 

3. Mediation of Cases: The cases selected by Plaintiffs and Biomet

for resolution pursuant to this paragraph will be referred to as the

“mediation cases.” Cases to be mediated are as follows:

*** 

(b) Contested Cases. Biomet also believes that there is good

cause to reduce the amounts to be paid on cases that qualify

for payments, pursuant to Paragraph 2 of this Settlement

Agreement. Good cause for Biomet to seek to reduce the

amount to be paid to a specific plaintiff, include, but are

not limited to, evidence of trauma, infection or other

objective explanations for a premature failure of the hip
7 

system with the absence of evidence of a MoM injury. By 

May 30, 2014, Biomet shall provide a list of its contested cases 

from all filed cases with materially completed fact sheets as of 

December 31, 2013. By September 19, 2014, Biomet shall 

provide a list of its contested cases from all filed cases with 

materially completed fact sheets served between January 1, 

2014 and June 13, 2014. 

[Doc. No. 1317] (emphasis added). 

Mr. Eastman argues that Biomet reduced his settlement award in bad 

faith. He says Biomet cited an altercation between Mr. Eastman and a former 

employee as a factor in reaching its decision, yet there is no evidence the 

altercation caused any “trauma or premature failure” of Mr. Eastman’s hip. 

Based on the circumstances, Mr. Eastman asserts that Biomet’s “good cause” 

analysis creates a genuine issue as to whether Mr. Eastman is eligible to receive 

the full award under the Master Settlement Agreement. 

Biomet asserts that its contract with Mr. Eastman is the release itself, not 

the Master Settlement Agreement. The Master Settlement Agreement lays out the 

parameters in which settlement negotiations must occur, not settlement terms 

that are universally binding upon Biomet. In another case in this docket, I 

explained the Master Settlement agreement’s purpose: “the Master Settlement 

Agreement allows Biomet to seek a reduced award for any good cause, and gives 

examples of reasons Biomet might have. Nothing in the Master Settlement 

Agreement allows a plaintiff to use the presumed award as a floor while the 

plaintiff seeks an enhancement . . . .” Hix v. Biomet, et al., 3:14-CV-619-RLM 

[Doc. No. 147]. The Master Settlement Agreement is merely a negotiation 

framework. “The Settlement Agreement explicitly allows the parties to disagree 
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about the categorization of a case and directs them to mediation when such a 

disagreement occurs.” Id. at p.3. I also noted that “settlement is a matter between 

the parties, and there are no steps the court can take to settle a case without the 

parties’ consent.” Id. at p.4. 

Biomet says the award reduction was made in good faith. In an email 

exchange, Biomet told Mr. Singleton that Mr. Eastman’s March 18, 2014 

operative report noted a post-revision diagnosis of “suspected” local tissue 

reaction from a metal-on-metal bearing surface with no indication of metallosis, 

pseudotumor, or any other metal-on metal findings. Biomet explained to Mr. 

Singleton that given its familiarity with Mr. Eastman’s revision surgeon, Dr. 

Newbern, the absence of a definitive diagnosis of a metal-on-metal injury was 

significant to Biomet’s reduced settlement valuation. Biomet also says the 

medical records indicated that Mr. Eastman had an “altercation” the day before 

the revision surgery and that he had been described as a “horrible patient.” 

Biomet says that these factors account for Biomet’s reduced settlement offer, 

and show that Biomet established “good cause” to lower the settlement award. 

Lastly, Biomet argues the parties had a meeting of the minds to resolve 

Mr. Eastman’s claims for $25,000. The release’s terms were clear and 

unambiguous, explicitly mentioning that Mr. Eastman intended “to participate 

in the settlement resolution program as set forth in the [Master Settlement 

Agreement] that was approved by the MDL court on February 2, 2014.” So, as 

Biomet sees it, Mr. Eastman can’t rely upon the Master Settlement Agreement 

as a basis for a breach of contract claim at this stage of the proceedings. Mr. 
9 

Eastman changed three words in the contract, but he did so surreptitiously, and 

neither Mr. Eastman nor Mr. Singleton told Biomet of those changes. Biomet 

believes that this shows that it didn’t knowingly and intentionally accept those 

changes. Despite the changes made, Biomet says, it negotiated in good faith and 

arrived at a binding, bargained-for, and final settlement that was memorialized 

in the release and supported by valid consideration. 

No legal authority supports Mr. Eastman’s arguments, those arguments 

are inconsistent with key provisions in the Master Settlement Agreement, and 

Mr. Eastman’s conduct shows that he accepted the $25,000. 

Paragraph 3 of the Master Settlement Agreement gave both Mr. Eastman 

and Biomet the right to dispute the base compensation amounts to which 

plaintiffs otherwise would be entitled to under paragraph 2, and required 

mediation in disputed cases. Paragraph 3(b) already has been quoted. Paragraph 

3(c) provides in relevant part: 

Mediation Process. The cases selected by Plaintiffs and Biomet for 

resolution pursuant to this paragraph, will be mediated with the 

assistance of Thomas Rutter of ADR Solutions in Philadelphia,

who will act as the mediator to work with the Parties to resolve any 

of the mediation cases, pursuant to this paragraph. Beginning in 

October 2014, the mediator will schedule, in consultation with the 

PEC and Biomet, firm-by-firm mediations to take place in 

Philadelphia. The Parties will confer in good faith, attempting to 

agree on values for all mediated cases. Any mediated case not 

resolved by [March 2, 2015], subject to the aggregate settlement 

percentage requirements set forth in Paragraph 5, will be remanded, 

pursuant to an appropriate order of the Court. 

[Doc. No. 1317] (emphasis added). 

Mr. Eastman’s claim was subject to mediation because it falls within the 
10

“contested cases” category. The Master Settlement Agreement gave Biomet the 

right to contest any case if it “believe[d] that there [was] good cause to reduce the 

amounts to be paid [under paragraph 2 of the Master Settlement Agreement].” 

Mr. Eastman contends that he is qualified for payments under paragraph 2 and 

that Biomet lacked good cause to reduce the amounts they were to be paid. But 

what constitutes “good cause” for purposes of this provision is subjective rather 

than objective, and isn’t limited to the examples set out in paragraph 3(b). If Mr. 

Eastman disputed Biomet’s reasons for seeking a reduction, his remedy under 

the Master Settlement Agreement was to proceed to mediation. Mr. Eastman 

chose not to do that. Instead, he changed a few words in the settlement 

agreement to “reserve” his right to sue under the Master Settlement Agreement. 

Although Mr. Eastman’s signature was “conditional,” he didn’t contest the terms 

of the release before he received the money, nor did he return the $25,000 to 

Biomet. 

As a result of his actions, Mr. Eastman impliedly consented to the Master 

Settlement agreement’s terms, including the covenant not to sue in paragraph 

11 of the Master Settlement Agreement. See Weldon v. Asset Acceptance, LLC, 

896 N.E.2d 1181, 1187 (Ind. Ct. App. 2008) (holding that assent implied from 

conduct created a binding contract between both parties). As Biomet noted, “A 

party may not claim benefits under a transaction or instrument and, at the 

same time, repudiate its obligations.” Raymundo v. Hammond Clinic Ass'n, 449 

N.E.2d 276, 283 (Ind. 1983) (citing Caito v. Indianapolis Produce Terminal, Inc., 

162 Ind. App. 590, 596 (1974)). No genuine factual issue exists as to whether 
11

Eastman was eligible to receive $200,000 under the Master Settlement 

Agreement. 

B. Duress and undue influence

Mr. Eastman argues that he signed the release with “under duress” and 

Biomet exerted undue influence and “strong arm tactics” that led him to sign a 

release that contravened the Master Settlement Agreement. These arguments 

are factually baseless and aren’t supported by any legal authority. 

C. Motion to strike under fraud and/or sanctions

Mr. Eastman also seeks to strike Biomet’s cross-motion for summary 

judgment on several grounds. First, Biomet engaged in “deception or fraud” 

when it sent Mr. Eastman a notice of the motion without attaching the actual 

copy of the motion. Mr. Eastman gives the court no reason to think the omission 

was fraudulent rather than a simple mistake by a litigant dealing with 

thousands of similar cases. Biomet mailed Mr. Eastman copies of the crossmotion immediately upon being notified of its mistake. Biomet didn’t make a 

bad faith attempt to harass, gain unfair advantage or cause unreasonable 

delay, and I gave Mr. Eastman extra time to respond to Biomet’s cross-motion 

[Doc. No. 119]. 

Mr. Eastman also asserts in his motion that Biomet engaged in 

“misconduct” for the same reasons Biomet is allegedly in breach of the Master 

Settlement Agreement—because Biomet didn’t have “good cause” to support 
12

Eastman’s reduced settlement award. This argument falls short for the same 

reasons Mr. Eastman’s summary judgment motion is being denied—Mr. 

Eastman didn’t exercise his option to mediate before the settlement, and Mr. 

Eastman impliedly accepted the settlement with Biomet when he accepted and 

retained the reduced settlement award. Because Biomet didn’t engage in any 

misconduct, no reason exists to strike its motion. 

IV. CONCLUSION

Under the terms of the Master Settlement Agreement, Mr. Eastman had 

two options once Biomet made its offer to settle: mediate claim or proceed to

trial on the merits. Mr. Eastman chose neither, and he can’t create a reservation 

to sue under the very agreement from which he benefited when he accepted the 

settlement award. The court DENIES Mr. Eastman’s motion for summary 

judgment [Doc. No. 107] and motions to strike and for sanctions [Doc. No. 116], 

and GRANTS Biomet’s cross-motion for summary judgment [Doc. No. 110]. The 

clerk shall enter judgment accordingly. 

SO ORDERED. 

ENTERED: November 9, 2017 

/s/Robert L. Miller, Jr. 

Judge 

United States District Court