UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

CHARLES HESS, et al., 

 Plaintiffs, 

 v. 

BIOMET, INC., et al., 

 Defendants. 

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Case No. 3:16-CV-208 JD 

OPINION AND ORDER

This case arises out of a dispute over distributorship agreements between Biomet, Inc., 

which sells medical devices, and six individual plaintiffs. In the early 1980s, when it was still in 

its infancy, Biomet hired each of the plaintiffs away from its established competitor and granted 

them exclusive distributorships within prescribed territories. As an incentive to move to a lessestablished company, which would result in a drop in pay in the near term, Biomet offered each 

of the plaintiffs lifetime commissions on products sold within their distributorships once they 

retired. Each of the plaintiffs retired between 1996 and 1999, at which time Biomet began 

making those payments. 

In 2015, around the time Biomet was merging with Zimmer, Inc., the parties discussed 

proposals for Biomet to buy out the plaintiffs’ rights to future commission payments. Those 

discussions brought to the fore a dispute over the scope of the retirement commissions. In 

particular, the parties disagree over whether the commissions are due only on products sold by 

the plaintiffs’ distributorships at the time they retired—as Biomet interprets the agreements and 

has been paying the plaintiffs for many years—or apply more broadly to all Biomet products 

(and now Zimmer products too), even those that the plaintiffs did not and were not authorized to 

sell within their distributorships. 
2 

The six plaintiffs filed this suit in April 2016 against Biomet and the new post-merger 

entity, Zimmer Biomet Holdings, Inc. (which the Court need not mention further). They asserted 

breach of contract claims on three separate grounds. They also asserted a claim for criminal 

deception based on commission statements that Biomet provided over the years. The case was 

first assigned to Judge Lozano, who granted a motion to dismiss as to two of the three breach of 

contract claims. The case continued through discovery, during which time it was transferred to 

the undersigned. Following the close of fact discovery, the plaintiffs moved to reconsider the 

order dismissing two of their breach of contract claims, and asked in the alternative for leave to 

amend their complaint to replead those claims. Both sides also moved for summary judgment. 

As explained below, the Court denies the motion to reconsider or amend—as a motion 

for reconsideration, it is unfounded, and as a motion for leave to amend, it is untimely. The Court 

also denies the motions for summary judgment as to the breach of contract claim at the core of 

the parties’ dispute, but grants the motions in part in other respects. 

I. FACTUAL BACKGROUND 

The plaintiffs in this case are six individuals who formerly worked as distributors for 

Zimmer, Inc., which sells medical devices. At the time the plaintiffs worked for Zimmer, 

Zimmer was an established company and the plaintiffs were successful salesmen. In the early 

1980s, Biomet was a new company attempting to enter the medical device field in competition to 

Zimmer. It approached each of the six plaintiffs and asked them to join Biomet Inc. as 

independent distributors. At that time, Biomet was still a fledgling company and sold only a 

limited catalog of products, consisting of joint-replacement devices. 

Because Biomet’s sales did not yet compare to Zimmer’s, moving to Biomet would result 

in a drop in compensation at least in the short term, as the distributors were paid on commission 

and Biomet could not afford to offer large up-front compensation. In order to induce them to 
3 

make that transition, Biomet offered each of the plaintiffs not only commissions on the sales they 

made as distributors, but also lifetime commissions on sales made after their retirement. Between 

September 1980 and June 1983, each of the six plaintiffs accepted those offers and signed 

contracts giving them exclusive distributorships in their respective territories. Robert 

McCormick covered Louisiana; Charles Hess and Ronald Papa jointly covered Oklahoma and 

Arkansas; Al Tornquist covered Kansas and Missouri; Marty Higgins covered two counties in 

Massachusetts; and Frank Shera covered most of Indiana and part of Kentucky. (The Court refers 

to the six plaintiffs collectively as the Distributors except when necessary to refer to them 

individually.) 

The distributorship agreements that each of the Distributors signed were identical as 

relevant here. The contracts were entered between each Distributor and “Biomet Inc.” [E.g., 158-

2]. The contracts granted each Distributor “the exclusive rights to the distribution and sale of 

Biomet products in [their] territory(s) and to the receipt of commissions for same[.]” Id. § 1. 

Section 2 of the contracts outlined the commission percentages that the Distributors would 

receive on various categories of products, and also set a floor for commissions on any items 

added to Biomet’s product line that were not covered by those categories. Id. § 2(b). The 

contracts also set sales quotas and explained that the territories could be changed or the 

distributorships could be terminated under certain conditions. Id. §§ 3–5. They also included a 

non-compete provision. That provision applied only to products sold by Biomet within each 

Distributors’ territory; it allowed the Distributors to sell other products “so long as these items 

are not sold or distributed or offered for sale” by Biomet within their territory. Id. § 6. However, 

if Biomet added any products or product categories to its line, the Distributors would have to 

cease selling any competing products. Id.
4 

The claims in this case focus on Section 9 of the contracts, which established a long-term 

commission program. Id. § 9. The Distributors would be vested in that program upon working 

for Biomet for ten years and reaching the age of 55, and the payments would commence upon 

their retirements. Id. § 9(a). Payments under that program were calculated as percentages of the 

“total ‘net sales’”: one and one-quarter percent of the first $4 million in net sales per year, and 

one-half of one percent of all further net sales, with no maximum. Id. § 9(d). The contracts then 

defined the term “net sales”: 

The term “net sales” shall be defined as gross sales made within the subject 

distributorship at the time this program is initiated and actually collected by Biomet 

less returns and allowances and less adjustments for nonpayment of invoices as 

provided herein. 

Id. § 9(e). Those payments would continue for the Distributors’ lifetimes (or for a minimum of 

10 years). Id. § 9(g). Section 9 also included a non-compete agreement for the term of the longterm commission program. In particular, it prohibited the Distributors’ involvement in “any 

business similar to the type of business conducted by Biomet at the time of the initiation and 

during the term of this program, within the territory(s) then assigned to the distributor.” Id.

§ 9(h). 

After signing those contracts, the Distributors began working for Biomet as distributors. 

The medical device industry is a relationship-driven business, and those positions entailed 

building relationships with surgeons and often attending surgeries to provide support while the 

surgeons were operating. The Distributors also provided feedback from the surgeons to Biomet’s 

research and development department in order to assist in developing new products and 

instruments. The Distributors’ contracts did not call for them to purchase any products from 

Biomet; in return for their services, the contracts entitled them to commissions on sales that 

Biomet made within their territories. In practice, however, the Distributors did purchase certain 
5 

sample products and also maintained some inventory of products and instruments. The 

Distributors’ business focused on selling reconstructive products, such as hip and knee implants, 

but they also sold some other products like pins used to fix bones after a trauma. 

Biomet as an organization expanded significantly over the years. Biomet expanded its 

reach beyond orthopedic products, which were the focus of the Distributors’ distributorships, by 

acquiring other companies to enter new product categories. In 1987, it acquired Electro-Biology, 

Inc. (EBI), which made bone growth stimulators. EBI had its own sales force, and though some 

of the Distributors asked for distribution rights for EBI’s products, they were not given 

authorization to distribute EBI products and were not paid commissions on sales of EBI’s 

products. In 1990, Biomet acquired Arrow Surgical Technologies, which it renamed Arthrotek, 

and which sold sports medicine products. Some of the Distributors were authorized to distribute 

Arthrotek products, but they were granted that authorization through separate distributorship 

agreements that they entered with Arthrotek. In 1992, Biomet acquired Walter Lorenz Surgical, 

which sold microfixation products. Biomet also acquired other companies after the Distributors’ 

retirements, including 3i Dental (which sells dental products), DePuy Trauma (trauma products) 

and Lanx, Inc. (spinal products). 

Each of the Distributors retired between 1995 and 1999, after their long-term 

commissions vested. Upon their retirements, Biomet began paying the long-term commissions to 

each of the Distributors on a bi-monthly basis. It paid those commissions based on the sales of 

orthopedic products, but did not include sales of the other business units it had acquired. (At 

some point, the orthopedic products were moved into a new entity, Biomet Orthopedics, Inc., 

and Biomet paid long-term commissions on all products sold through that business unit.) Each 

payment was accompanied by a commission statement, which would contain little information 
6 

beyond the amount being paid and its calculation. By 2007, those commission statements began 

listing each item sold upon which the Distributors were receiving commissions. They did not 

report any sales that were made but upon which the Distributors were not receiving 

commissions, though. The Distributors claim that throughout that time, they were unaware that 

they were not being paid long-term commissions on products sold by the other business units. 

Around 2015, Biomet began undergoing a merger with Zimmer. Prior to completing the 

merger, Biomet made the Distributors offers to buy out their rights to future commission 

payments. The Distributors asserted at that time that they should be entitled to commissions not 

only on Biomet products, but also on any Zimmer products once the merger went through. 

Biomet disagreed. The Distributors also claim to have first discovered around that time that 

Biomet was paying them long-term commissions only on Biomet Orthopedic products, not sales 

from the other companies under the Biomet umbrella. The Distributors retained counsel and 

continued buy-out negotiations with Biomet, but those discussions fell through. 

The Distributors thus filed this suit in April 2016. Counts 1 through 3 asserted claims for 

breach of contract, each under a different theory. In Count 1, the Distributors argue that Biomet 

breached the contracts by paying long-term commissions only on Biomet Orthopedic products, 

not products sold through the other business units. In Count 3, the Distributors argue that, 

following the merger, the long-term commission payments apply to all Zimmer or Zimmer 

Biomet products, not just to Biomet products, and that Biomet breached the contracts by failing 

to pay those commissions. Count 2 apparently rejects the premise of Count 3 that the contracts 

apply to sales of those other brands, but it claims that Biomet breached the contracts by rebranding Biomet products as Zimmer or Zimmer Biomet products in order to avoid having to 

pay commissions on those sales. Finally, Count 4 asserted a claim for criminal deception, on the 
7 

basis that the commission statements only reflected the sales of Biomet Orthopedic products for 

which Biomet was paying the long-term commissions, not the larger set of products on which the 

Distributors argue they were entitled to payment (as claimed in Count 1).1

Biomet moved to dismiss the complaint in full for failure to state a claim. At that point, 

the case was assigned to Judge Lozano. In an order dated February 16, 2017, Judge Lozano 

granted the motion to dismiss as to Counts 2 and 3, but denied the motion as to Counts 1 and 4. 

By that time, discovery had already commenced and the magistrate judge had entered a 

scheduling order. Though Judge Lozano did not state that the dismissal of Counts 2 and 3 was 

with prejudice, and though the scheduling order still permitted the Distributors to file an 

amended complaint without even seeking leave of court, they did not do so. Discovery thus 

continued on the remaining claims, and the deadlines for the close of fact and expert discovery 

were extended on multiple occasions. In the meantime, the case was reassigned to the 

undersigned pursuant to General Order 2017-4, under which cases in this district were 

transferred to judges sitting in the division in which they were filed. 

Fact discovery finally closed on May 1, 2018. Shortly prior to the close of expert 

discovery on August 27, 2018, the Distributors filed a motion to reconsider the order dismissing 

Counts 2 and 3, the breach of contract claims relating to the merger with Zimmer. In the 

alternative, they asked for leave to amend their complaint to properly plead those claims. Shortly 

thereafter, both parties filed motions for summary judgment on the pending claims. The briefing 

on each of those motions and several related motions is now complete. The Court thus addresses 

the motion for reconsideration before turning to the motions for summary judgment. 

 

1

 The complaint also included other counts that have been dismissed and are not relevant here.
8 

II. MOTION FOR RECONSIDERATION OR LEAVE TO AMEND 

The Distributors move for reconsideration of the order dismissing Counts 2 and 3. In the 

alternative, they request leave to amend their complaint to adequately plead those counts. In 

those counts, which arose from Biomet’s merger with Zimmer, the Distributors sought to recover 

commission payments for products sold as Zimmer or Zimmer Biomet products. Judge Lozano 

granted Biomet’s motion to dismiss those claims, holding that the Distributors had not 

adequately pled a breach of contract on the theories alleged in those counts. 

The Court begins with the motion for reconsideration. Courts have authority to amend 

their interlocutory orders prior to the entry of final judgment, Fed. R. Civ. P. 54(b),2

 but motions 

for reconsideration are seldom appropriate. Bank of Waunakee v. Rochester Cheese Sales, Inc., 

906 F.2d 1185, 1191 (7th Cir. 1990). Motions for reconsideration are “not an appropriate forum 

for rehashing previously rejected arguments or arguing matters that could have been heard 

during the pendency of the previous motion.” Caisse Nationale de Credit Agricole v. CBI Indus., 

Inc., 90 F.3d 1264, 1269–70 (7th Cir. 1996). They should be used only in rare circumstances, 

such as where “the Court has patently misunderstood a party, or has made a decision outside the 

adversarial issues presented to the Court by the parties, or has made an error not of reasoning but 

of apprehension,” or where there has been “a controlling or significant change in the law or 

facts.” Bank of Waunakee, 906 F.2d at 1191. 

There is another factor relevant to the motion for reconsideration here: the Distributors 

ask to reconsider an order entered by a previous judge in this case. The law of the case doctrine 

applies with even greater force in that circumstance. HK Sys., Inc. v. Eaton Corp., 553 F.3d 

1086, 1089 (7th Cir. 2009) (“The doctrine of law of the case counsels against a judge's changing 

 

2

 In its response, Biomet relies in part on Rule 60(b), but that rule only applies to final 

judgments, not interlocutory orders.
9 

an earlier ruling that he made in the same case, or that his predecessor as presiding judge had 

made. The doctrine has greater force in the second type of case—when there is a change of 

judges during the litigation and the new judge is asked to revisit the rulings of his predecessor.” 

(citations omitted)). The Seventh Circuit has “advise[d] judges that, because litigants have a right 

to expect consistency even if judges change, the second judge should ‘abide by the rulings of the 

first judge unless some new development, such as a new appellate decision, convinces him that 

his predecessor’s ruling was incorrect.’” Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012) 

(quoting Fujisawa Pharm. Co. v. Kapoor, 115 F.3d 1332, 1339 (7th Cir.1997)). 

The Distributors point to no such new development here. The only legal argument they 

make in support of the viability of their dismissed claims is based on a decision that is neither 

“new” nor “appellate”—they rely on a decision by another district judge that not only predated 

Judge Lozano’s order, but that Judge Lozano expressly addressed and distinguished in his order. 

The Distributors may disagree with Judge Lozano’s reasoning, but that is not a ground for 

reconsideration. The Distributors also suggest that Judge Lozano was misled by the way in 

which their complaint characterized the contracts. Instead of attaching the contracts to the 

complaint or citing their relevant provisions, the complaint merely paraphrased the contracts.3

The Distributors now concede that their characterization of a critical contractual term may have 

been misleading. [DE 159 p. 10 n.8]. But not only is that their own fault, it could have been 

easily and promptly cured through an amended complaint. It does not justify a motion for 

reconsideration filed nearly a year-and-a-half later, before a different judge, after discovery has 

closed. 

 

3

 The Distributors submitted the contracts with their response to the motion to dismiss, but did 

not cite or rely on them in their argument in defense of these claims.
10 

None of the new facts the Distributors cite warrant reconsideration, either. In support of 

their motion, the Distributors cite two pieces of “newly discovered evidence”: a contract Biomet 

entered with a different distributor in 2007, and testimony by a Biomet representative about the 

Distributors’ agreements. To begin with, though, newly discovered evidence on a motion to 

dismiss is a contradiction in terms. Motions to dismiss evaluate the sufficiency of the allegations 

in a complaint. New evidence that was not pled in the complaint would not change the outcome 

of such a motion. At least where, as here, claims were not dismissed with prejudice, new 

evidence would not support a motion for reconsideration, but would need to be incorporated into 

an amended complaint. 

In addition, the new evidence the Distributors rely on is insubstantial. They first cite an 

agreement that Biomet Orthopedics, Inc. (not Biomet Inc., the party to their contract and the 

defendant in this case) entered in 2007 with Tim Weis, another distributor. Mr. Weis began as a 

distributor for Biomet in 1980, at which time he signed a distributorship agreement similar to the 

ones the Distributors here signed, including the long-term commission program. In 2007, Mr. 

Weis signed a revised distributorship agreement, and the long-term commission program in that 

revised agreement explicitly limits its scope to orthopedic products sold by Biomet Orthopedics, 

Inc.—the entity that currently sells the products on which Biomet argues the Distributors are 

entitled to commissions. The Distributors argue that because the 2007 Weis agreement explicitly 

spelled out that limitation, but their own agreements did not, that difference in language must 

mean that their own agreements are not so limited. 

That conclusion does not follow. Contracts are typically construed together only if they 

relate to the same subject matter and were “executed at the same time.” Orthodontic Affiliates, 

P.C. v. Long, 841 N.E.2d 219, 22 (Ind. Ct. App. 2006). That is clearly not the case here. The 
11 

2007 Weis agreement was signed a quarter-century after the agreements at issue here. By that 

time, Biomet was a different and more sophisticated organization than it was in the early 1980s, 

and the 2007 Weis agreement is lengthier and more detailed in many respects than the original 

distributorship agreements. That Biomet Orthopedics, Inc. (which is not a party to this case) 

would draft a more detailed and precise agreement with Mr. Weis (who is not a party to this case 

either) at a different time and under different circumstances does not mean that the agreement 

must have a different meaning than the original distributorship agreements between Biomet and 

the Distributors. This sort of extrinsic evidence thus offers little, if any, insight into the meaning 

of the Distributors’ agreements. 

Second, the Distributors cite testimony by a Rule 30(b)(6) witness for Biomet, Ashley 

Portz. When asked about the meaning of the contracts, Ms. Portz testified: 

Biomet as a business evolved over time. So what Biomet looks like in the early ’80s 

is not what it looked like in the mid-’90s and is not what it looked like into 2000 

and beyond. So our -- our hindsight looking back can point to the fact that there 

were some details that were vague, that didn’t -- today, if we had all the information 

that we had, it would have been great if they had put in those contracts “please only 

pay commission on Company 4.” That just wasn’t the case in terms of what we 

know now versus what was included in the contract. I think that would have solved 

everyone’s problem if we had -- if we had explicitly stated the parameters with 

which everything would have been defined. 

[DE 159-4]. The Distributors see this as a smoking-gun admission that the contracts as written do 

not support Biomet’s interpretation. 

This testimony strikes the Court, however, as entirely unremarkable. Any time two 

parties dispute the meaning of a contractual term, both sides likely wish the term had been 

drafted differently to more clearly dictate their side’s interpretation. That is even more true when 

circumstances change over time to produce new situations that the contracts were not drafted to 

confront. For their part, the Distributors clearly wish the contracts had been drafted differently to 

better support their own interpretation—their summary judgment filings repeatedly assert that 
12 

long-term commission payments are due on all net sales within their “territories,” but that’s not 

the language the contracts use. Ms. Portz’s common-sense observation that it would be better if 

the contracts had been drafted so as to more clearly address this situation does not mean that 

Biomet’s interpretation of the contract is wrong.4 And more to the point, this extrinsic evidence 

that was not included in the Distributor’s initial complaint does not warrant reconsideration of 

the dismissal of that complaint. Last, the Distributors argue that Biomet is continuing to engage 

in conduct that violates the contracts under the theories alleged in the dismissed counts. But that 

provides no reason to reconsider the dismissal of those counts. Accordingly, the Court denies the 

Distributors’ motion to reconsider. 

The Court thus considers the Distributors’ alternative request for leave to file an amended 

complaint to replead these two claims. Under Rule 15, district courts “should freely give leave 

[to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “‘The Supreme Court has 

interpreted this rule to require a district court to allow amendment unless there is a good 

reason—futility, undue delay, undue prejudice, or bad faith—for denying leave to amend.’” 

Liebhart v. SPX Corp., No. 18-1918, 2019 WL 1053618, at *9 (7th Cir. Mar. 6, 2019) (quoting 

Life Plans, Inc. v. Sec. Life of Denver Ins. Co., 800 F.3d 343, 357 (7th Cir. 2015)). The Seventh 

Circuit has stated that “delay by itself is normally an insufficient reason to deny a motion for 

leave to amend,” but it can suffice when coupled with another reason, such as “prejudice to the 

 

4

 Moreover, it does not appear that Ms. Portz worked for Biomet when the contracts at issue 

were signed or has any first-hand knowledge of the parties’ intent at that time, and the 

Distributors moved to strike the testimony of another Biomet employee on the basis that he did 

not work for Biomet at the time the parties entered the contracts and thus lacked personal 

knowledge as to the parties’ intent. [DE 187 p. 9–10]. It is thus unclear on what basis the 

Distributors could rely on Ms. Portz’ testimony in this respect.
13 

non-moving party.” Liebhart, 2019 WL 1053618, at *10; see also Dubicz v. Commonwealth 

Edison Co., 377 F.3d 787, 893 (7th Cir. 2004). 

The Court denies the motion for leave to amend, as the motion is untimely and 

prejudicial. Judge Lozano granted the motion to dismiss on February 16, 2017. At that time, the 

scheduling order still allowed the Distributors to file an amended complaint without even 

seeking leave of court until February 28, 2017, after which they could have sought leave to 

amend. [DE 46]. Yet they did not seek leave to file their amended complaint until July 31, 2018, 

over seventeen months later. [DE 157]. By that time, the extensive period of fact discovery had 

already closed on May 1, 2018, and expert discovery closed on the same day the Distributors’ 

motion became ripe. The Distributors attempt to justify this delay by noting that the new 

evidence noted above did not come to light until April 2018 (the Portz deposition) and June 2018 

(the Weis agreement). But even under their own description of their amended complaint, neither 

of those two pieces of extrinsic evidence were necessary to their amended complaint; their 

principal theory is that the language of the contracts is unambiguous, in which case this extrinsic 

evidence could not even be considered. Indeed, the Court does not understand why the 

Distributors would not have filed an amended complaint as soon as the initial complaint was 

dismissed, and they have offered no reason why they could not have done so. Their failure to do 

so for nearly a year and a half easily constitutes undue delay.

That delay is not harmless, either. Most notably, discovery has already closed, and 

neither side is able to address the amended claims on the basis of the discovery that has already 

been conducted. See Bell v. Taylor, 827 F.3d 699, 705 (7th Cir. 2016) (affirming the denial of 

leave to amend a complaint where the motion was filed at the close of discovery and would have 

“affect[ed] the summary judgment schedule and potentially creat[ed] a need to reopen 
14 

discovery”); Johnson v. Cypress Hill, 641 F.3d 867, 873 (7th Cir. 2011); Feldman v. Am. Mem’l 

Life Ins. Co., 196 F.3d 783, 793 (7th Cir. 1999) (finding that the prejudice from an amended 

complaint that would have added a new claim “well after the close of discovery and on the eve of 

summary judgment proceedings” was so clear that the district court need not have even 

articulated its reasoning for denying leave to amend). The Distributors argue that that prejudice 

can be cured by reopening discovery, but that is not warranted here. The discovery period in this 

case was already extensive, spanning over eighteen months. That gave the Distributors ample 

time to refine their complaint if they wished to. Discovery was also contentious, producing many 

motions to compel discovery or for protective orders. 

The Distributors argue that, unlike the rest of the discovery in this case, the discovery 

necessary to their amended claims would be cheap and quick. The Court is doubtful, but even 

accepting the Distributors’ unlikely premise, re-opening discovery would still substantially delay 

the resolution of this case. The Distributors would need to propound their discovery requests for 

the sales data they seek, and Biomet would then need time to respond. The Distributors indicate 

they may also need to conduct a Rule 30(b)(6) deposition of a Biomet representative to decipher 

the sales data. The Distributors would then presumably need to have their damages expert review 

the sales data and prepare a new damages report, after which Biomet would likely seek to depose 

him and perhaps procure a rebuttal expert report. 

Following the close of this discovery, the parties would then need time to file and brief a 

new round of motions for summary judgment on these additional claims, which would take 

several months. The Court would then have to consider and resolve those motions, having 
15 

already considered and resolved one round of summary judgment motions in this case.5

 All told, 

this process would entail a considerable expense of time and money and could easily delay this 

case by a year or more. Those consequences are not justified. This case is already nearly three 

years old, and the parties had ample time to conduct discovery. The Distributors could have 

sought leave to amend their complaint while discovery was still ongoing, and they have not 

given any sound reason for their failure to do so. Accordingly, the Court finds that justice does 

not require that the Distributors be allowed to file such an untimely amended complaint, so the 

Court denies the motion in that respect too. 

III. SUMMARY JUDGMENT STANDARD OF REVIEW 

Summary judgment is proper when the movant shows that there “is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). A “material” fact is one identified by the substantive law as affecting the outcome of the 

suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” exists with 

respect to any material fact when “the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Id. Where a factual record taken as a whole could not lead a 

rational trier of fact to find for the non-moving party, there is no genuine issue for trial, and 

summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)). In 

determining whether a genuine issue of material fact exists, this Court must construe all facts in 

the light most favorable to the non-moving party and draw all reasonable and justifiable 

inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008); King v. 

 

5

 The Distributors filed their motion for summary judgment before their motion for 

reconsideration became ripe, and Biomet filed its own motion for summary judgment shortly 

thereafter.
16 

Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999). In a case involving cross-motions for 

summary judgment, that means that each party receives the benefit of all reasonable inferences 

when considering the opposing party’s motion. Tegtmeier v. Midwest Operating Eng’rs Pension 

Tr. Fund, 390 F.3d 1040, 1045 (7th Cir. 2004); Hendricks-Robinson v. Excel Corp., 154 F.3d 

685, 692 (7th Cir. 1998). 

IV. DISCUSSION 

Both sides have moved for summary judgment on various issues. First, Biomet moves for 

summary judgment on the grounds that the Distributors’ claims are barred by the statute of 

limitations and by laches. Both parties have moved for summary judgment on the merits of the 

breach of contract claim. Biomet also moved for summary judgment on the Distributors’ request 

for future damages on the breach of contract claim, and on the merits of the Distributors’ 

criminal deception claim. Finally, the Distributors move for summary judgment on all of 

Biomet’s affirmative defenses. The Court address each issue in turn. 

A. Statute of Limitations 

Biomet first moves for summary judgment on the ground that the Distributors’ breach of 

contract claim is barred by the statute of limitations. It argues that it has paid long-term 

commissions only on reconstructive products for the entirety of the long-term commission 

program, which has been in place for decades for some of the Distributors. Biomet argues that 

the Distributors knew or should have known that it was paying the commissions in that manner 

some time ago, and at least by 2007, when the commission statements began itemizing the sales 

on which commissions were being paid. It thus argues that their suit, filed in 2016, is barred by 

the statute of limitations. 

The Court denies the motion for two reasons. First, the statute of limitations would not 

bar the Distributors’ claims in their entirety, but would only limit the period for which they can 
17 

recover damages. In Indiana, the “general rule is that where an obligation is payable in 

installments, the statute of limitations runs as to each installment as it becomes due.” Kuhn v. 

Kuhn, 402 N.E.2d 989, 991 (1980); Hamlin v. Steward, 622 N.E.2d 535, 539 (Ind. Ct. App. 

1993) (“[A] cause of action accrues and the statute of limitations begins to run on an installment 

obligation when and as each installment becomes due.”). Here, the long-term commission 

payments came due on an ongoing basis, as they were calculated as a percentage of sales that 

were actually made. Until those sales were made and the commissions came due, no claim could 

accrue for any underpayment. Thus, the statute of limitations began running separately for each 

alleged underpayment. 

Biomet argues that that principle does not apply here because the agreements do not 

qualify as “installment contracts,” as that term is defined in a particular context. However, 

Indiana courts do not limit this rule to installment contracts. To the contrary, the Indiana 

Supreme Court has described this as the “general rule” that “has been applied to various 

obligations” payable in installments. Kuhn, 402 N.E.2d at 991. Since the commission payments 

at issue here became due over time in installments, the statute of limitations cannot bar the 

Distributors’ claims in whole; at worst, it could preclude the Distributors from seeking 

underpayments that accrued prior to the applicable limitations period. 

Second, Biomet’s argument relies on the premise that the claim is governed by the 

Uniform Commercial Code, which provides a four-year statute of limitations. If not, then the 

breach of contract claims are subject to ten- or twenty-year statutes of limitations. Article 2 of 

the UCC applies to “transactions in goods.” Ind. Code § 26-1-2-102. In applying that standard to 

transactions involving both goods and services, Indiana courts use the “predominant thrust” test, 

which looks to whether the predominant thrust of the contract was the sale of goods, as opposed 
18 

to the provision of services. Insul-Mark Midwest, Inc. v. Modern Materials, Inc., 612 N.E.2d 

550, 554 (Ind. Ct. App. 1993); Pain Center of SE Ind. LLC v. Origin Healthcare Solutions LLC, 

893 F.3d 454, 460 (7th Cir. 2018). Factors relevant to that determination include: (1) the 

language of the contract; (2) the circumstances of the parties and the primary reason they entered 

into the contract; and (3) the relative costs of the goods and services. Pain Center, 893 F.3d at 

460. 

Biomet argues that the predominant purpose of the contracts was the sale of Biomet’s 

products, so the UCC applies. Those sales are not part of the contracts between these parties, 

though. The subject of the contracts at issue here is the Distributors’ appointment as distributors 

for Biomet and their entitlement to commissions on sales that Biomet makes to other parties. The 

sales of Biomet products come as part of separate transactions between Biomet and its 

customers. Biomet made that point in support of its motion to dismiss, at which time it took the 

opposite position and argued that the UCC did not apply: “While Plaintiffs have plead that they 

are entitled to commission payments that are calculated from the sale of Biomet goods by others, 

the transactions between Plaintiffs and Defendants do not involve goods.” [DE 19 p. 12].6

 The 

Distributors accept and expound on that point in response to Biomet’s present argument: “[A]s 

between Plaintiffs and Biomet, the transaction is one in which each Plaintiff provided its services 

to Biomet and there was no ‘sale of goods’ involved. In contrast, the transactions between 

Biomet and Biomet’s customers indisputably are for the sale of goods and are subject to the 

 

6

 The Distributors argue that Biomet is judicially estopped from taking a contrary position now, 

since Biomet prevailed in securing the dismissal of two counts on that basis. In response, Biomet 

argues that its prior argument was only commenting on the sufficiency of the Distributors’ 

allegations, not taking an affirmative position as to whether the UCC actually applies. The Court 

need not resolve whether Biomet’s previous argument can be sliced that thin, though, as its 

present argument fails even on its merits.
19 

UCC. But it is the former, service-based agreement between Plaintiffs and Biomet not the latter 

sale of goods between Biomet and its customers that is at issue.” [DE 198 p. 18]. The Court 

agrees. 

Biomet notes in response that many cases state that the UCC applies to distributorship 

agreements. E.g., Sally Beauty Co., Inc. v. Nexxus Prods. Co., 801 F.2d 1001, 1005–06 (7th Cir. 

1986) (collecting cases); Moridge Mfg. Co. v. Butler, 451 N.E.2d 677, 678 (Ind. Ct. App. 1983). 

However, those cases overwhelmingly address agreements under which the manufacturer sells its 

products to the distributor, which then resells the products. The contracts here do not 

contemplate such an arrangement. As just discussed, the contracts appoint the Distributors as the 

exclusive distributors of Biomet products and entitle them to commissions on all sales within 

their territories, but the contracts do not call for the Distributors to buy any products from 

Biomet. 

Biomet also notes that, in practice, the Distributors did purchase some sample products 

and also decided to keep an inventory of certain products on hand. However, the predominant 

thrust of the agreements was not to sell samples or inventory to the Distributors.7

 It was to retain 

the Distributors’ services as independent sales representatives to develop relationships with the 

surgeons and persuade them to use Biomet products, as well as to facilitate communications 

between the surgeons and Biomet’s research and development department. Though the goal of 

that arrangement was of course to increase the sales of Biomet products, those sales took place as 

part of separate transactions between Biomet and its customers, not the Distributors. 

 

7

 Nor has Biomet offered evidence of the cost of those purchases by the Distributors or its 

relation to the amount of commissions they were paid for their services.
20 

Accordingly, the UCC and its four-year statute of limitations do not govern the Distributors’ 

claims. 

For those reasons, the Court denies Biomet’s motion for summary judgment as to the 

statute of limitations. However, Biomet remains free to raise the statute of limitations at trial to 

limit the length of time for which the Distributors can seek damages under the applicable 

limitations periods. The remaining disputes raised in the parties’ briefs as to the statute of 

limitations can be addressed in that context. 

B. Laches 

Biomet also moves to bar the Distributors’ breach of contract claim under the doctrine of 

laches. “Laches is a defense developed by courts of equity to protect defendants against 

unreasonable, prejudicial delay in commencing suit.” SCA Hygiene Prods. Aktiebolag v. First 

Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (2017); SMDfund, Inc. v. Fort Wayne-Allen Cty. 

Airport Auth., 831 N.E.2d 725, 729 (Ind. 2005) (“Independently of any statute of limitation, 

courts of equity uniformly decline to assist a person who has slept upon his rights and shows no 

excuse for his laches in asserting them.”). In Indiana, laches requires three elements: 

(1) inexcusable delay in asserting a known right; (2) an implied waiver arising from knowing 

acquiescence in existing conditions; and (3) a change in circumstances causing prejudice to the 

adverse party. SMDfund, 831 N.E.2d at 729; Shafer v. Lambie, 667 N.E.2d 226, 231 (Ind. Ct. 

App. 1996). A mere lapse in time is insufficient; unreasonable delay which causes prejudice or 

injury is necessary. Shafer, 667 N.E.2d at 231. In addition, for claims subject to a statute of 

limitations, laches requires a fourth element: reliance by the defendant. Id. (“The doctrine of 

laches may bar a plaintiff’s claim even though the applicable statute of limitations has not yet 

expired if the laches are of such character as to work an equitable estoppel (which contains the 
21 

additional element of reliance by the defendant).”); see also Town of New Chicago v. City of 

Lake Station, 939 N.E.2d 638, 652–53 (Ind. Ct. App. 2010). 

Laches is an affirmative defense for which the defendant bears the burden of proof. 

Woods v. Harris, 600 N.E.2d 163, 164 (Ind. Ct. App. 1992). As a party moving for summary 

judgment on an issue for which it also bears the burden of proof, Biomet would have to show 

that the evidence proves beyond dispute that each element of laches is present here. Biomet has 

not met that burden at least as to the element of reliance. In its opening brief, Biomet makes no 

attempt to establish that element. In its reply brief, Biomet argues that its reliance is shown by its 

continued payment of retirement commissions over the years. But Biomet did not make those 

payments in reliance on the Distributors’ acquiescence—Biomet was required under the 

contracts to make those payments. And in any event, “[a]rguments raised for the first time in a 

reply brief are waived.” United States v. Waldrip, 859 F.3d 446, 450 n.2. (7th Cir. 2017). Biomet 

has thus failed to show that it is entitled to summary judgment in its favor under the doctrine of 

laches, so the Court denies its motion in that respect. Again, though, Biomet remains free to raise 

this defense at trial. 

C. Breach of Contract 

Both sides have moved for summary judgment on the Distributors’ breach of contract 

claim. This claim focuses on the scope of products on which the Distributors are entitled to 

receive long-term commissions. Biomet argues that the contracts entitle the Distributors to longterm commissions on the same set of products they were authorized to sell during their 

distributorships—primarily reconstructive products, meaning joint-replacement products. The 

Distributors contend that the long-term commissions apply more broadly to all products sold 

under the Biomet brand, regardless of whether they sold those products as part of their former 
22 

distributorships. They thus claim that Biomet breached the contract by failing to pay 

commissions on that broader set of products. 

Under the contracts, the long-term commissions are calculated as percentages of “net 

sales.” The contracts then define that term, in a provision that is the focus of both parties’ 

arguments: “The term ‘net sales’ shall be defined as gross sales made within the subject 

distributorship at the time this program is initiated and actually collected by Biomet less returns 

and allowances and less adjustments for nonpayment of invoices as provided herein.” The central 

question here is: by what parameters is the “subject distributorship” defined? Biomet contends 

that, relative to sales made “within the subject distributorship at the time this program is 

initiated,” the “subject distributorship” is defined both by the products sold within the 

distributorship and by the geographic territory of the distributorship. The Distributors disagree, 

contending that the “subject distributorship” is defined solely by its geographic territory. Thus, 

they argue that they entitled to long-term commissions on all Biomet products sold in their 

former territories, even products that they did not and were not authorized to sell as part of their 

distributorships. 

The goal of contract interpretation is “to determine the intent of the parties at the time 

that they made the agreement.” Care Grp. Heart Hops., LLC v. Sawyer, 93 N.E.3d 745, 752 (Ind. 

2018); Reuille v. E.E. Brandenberger Constr., Inc., 888 N.E.2d 770, 771 (Ind. 2008). Courts start 

with the language of the contract itself. Sawyer, 93 N.E.3d at 752. “If the language is 

unambiguous, [courts] give it its plain and ordinary meaning in view of the whole contract, 

without substitution or addition,” id., and “the parties’ intent is to be determined by reviewing 

the language contained within the ‘four corners’ of” the contract. Ryan v. TCI 

Architects/Eng’rs./Contractors, Inc., 72 N.E.3d 908, 917 (Ind. 2017). Language is ambiguous 
23 

“only if reasonable people could come to different conclusions as to its meaning.” Univ. of S. 

Ind. Found. v. Baker, 843 N.E.2d 528, 532 (Ind. 2006). That determination is a question of law 

for a court to decide. Celadon Trucking Servs., Inc. v. Wilmoth, 70 N.E.3d 833, 839 (Ind. Ct. 

App. 2017). If a court decides that a contract is ambiguous, however, “the parties may introduce 

extrinsic evidence of its meaning, and the interpretation becomes a question of fact.” Id. “[A]ll 

relevant extrinsic evidence may properly be considered in resolving the ambiguity.” Baker, 843 

N.E.2d at 535. 

Though both sides argue that the contracts unambiguously support their interpretation, 

the Court finds that the contracts are ambiguous in this respect. The contracts do not provide any 

definition of the term “subject distributorship,” it is not clear by what parameters the contracts 

define that term in this context. The contracts do set geographic limitations on the scope of the 

distributorships, as they grant the Distributors exclusive distributorships only within prescribed 

territories. They also contemplate that the territory could change over time, so it makes sense for 

the long-term commissions to be based on sales within the distributorships “at the time this 

program is initiated.” Both parties agree that the “subject distributorships” are defined at least by 

their territories. 

However, the contracts also define the distributorships by their products, which the 

contracts likewise contemplate could change over time. Section 1 grants the Distributors the 

exclusive right to distribute “Biomet products” in their territories and to receive commissions on 

those products. But Section 6 allows the distributors to sell non-Biomet products in their 

territories too, so long as Biomet does not offer competitive products in their territories. Sales of 

those non-Biomet products would not be described as sales “within the subject distributorship.” 

And Section 6 also states that if Biomet adds competitive products to its line, the Distributors 
24 

have to cease selling those non-Biomet products. The distributorships thus have product-based 

dimensions as well. Therefore, in referring to sales within the “subject distributorship” at a given 

point in time, the contracts could plausibly be referring to the products sold within the 

distributorships as well as their territories. 

The Distributors argue that any ambiguity is resolved by the use of the prepositional 

phrase “within the subject distributorship.” As the Distributors note, the word “within” can 

denote a spatial or geographic relationship. E.g., https://www.dictionary.com/browse/within 

(defining “within,” in part, as “at or to some point not beyond, as in length or distance; not 

farther than: within a radius of a mile”); https://www.merriam-webster.com/dictionary/within 

(“used as a function word to indicate enclosure or containment”); 

https://en.oxforddictionaries.com/definition/within (“inside the range of (an area or boundary)”). 

They also note that interpreting this phrase to set limitations on both the territories of the 

distributorships and the products sold within those distributorships would attach a lot of meaning 

to a simple prepositional phrase, which is a fair observation. However, the word “within” can 

also denote a relationship relative to a content or subject matter. E.g., 

https://www.dictionary.com/browse/within (“inside the limits fixed or required by” or “in the 

field, sphere, or scope of”); https://www.merriam-webster.com/dictionary/within (“in or into the 

scope or sphere of”); https://en.oxforddictionaries.com/definition/within (“inside the bounds set 

by (a concept, argument, etc.)”). Thus, this phrase could plausibly be referring to the subject 

matter of the distributorships as well, meaning the products sold within those distributorships. 

The Distributors also offer several arguments to the effect that, since the definition of 

“net sales” does not explicitly include a product-based limitation or use the word “product,” that 

limitation must not be part of the contracts, and Biomet must be trying to rewrite the contracts to 
25 

conform to its position. However, for every argument the Distributors make along those lines, 

the same could be said about their own interpretation. True, the long-term commission provision 

does not explicitly state that commissions are payable only on products that were sold by the 

Distributors at the time they retired. But neither does the provision state that commissions are 

payable on all products sold “within their territories” at the time they retired—it does not use the 

word “territory” at all. Instead, it states that commissions are payable on sales “within the subject 

distributorship[s],” a phrase that could bear either party’s interpretation, as just discussed. Also, 

as Biomet notes, the contracts use the term “territory” over twenty times, and even use the phrase 

“within the territory” or something similar in multiple instances. (See § 6 (prohibiting the 

Distributors from selling competing products “within said appointed territory(s)”); § 9(h)(1) 

(likewise prohibiting the Distributors from competing “within the territory(s) then assigned to 

distributor”)). If the contracts intended “net sales” to be defined by that same limitation—sales 

made within “the territory of” the subject distributorships—it is odd that they would not use that 

same language in that provision. 

The Distributors next argue that their interpretation is necessary in order to harmonize the 

long-term commissions provision with the contracts’ lifetime non-compete provision. First Fed. 

Sav. Bank of Ind. v. Key Markets, Inc., 559 N.E.2d 600, 603 (Ind. 1990) (holding that a court 

“must accept an interpretation of the contract which harmonizes its provisions as opposed to one 

which causes the provisions to be conflicting”). The contracts include a non-compete provision 

that applies for the term of the long-term commission program, meaning for the Distributors’ 

lives. The provision prohibits each Distributor from engaging in “any business similar to the type 

of business conducted by Biomet at the time of the initiation and during the term of this 

program, within the territory(s) then assigned to [D]istributor.” (emphasis added). In other 
26 

words, the lifetime non-compete provision applies to products sold at the time the Distributors 

retired as well as any products Biomet sells at a later time. The Distributors contend that, if the 

non-compete provision applies to those additional products, it is necessary to construe the lifetime commission provision the same way in order to harmonize those provisions. Put another 

way, they believe they should receive long-term commissions on any products the non-compete 

provision would bar them from selling. 

Interpreting those two provisions to have different scopes does not create any conflict, 

though, and the Distributors offer no reason why the long-term commissions provision has to 

apply as broadly as the non-compete provision. Under either sides’ interpretation of the longterm commissions provision, the Distributors have received substantial compensation for their 

performance under the contracts—the six Distributors have collectively been paid over $13 

million in long-term commissions since their retirements, and they project that they will be paid 

an additional $14 million over the course of their lifetimes even under Biomet’s interpretation. 

Interpreting the long-term commissions provision to include only those amounts does not create 

any conflict with the non-compete provision, it just gives the Distributors somewhat less 

compensation. Moreover, had the contracts intended the two provisions to have the same scope, 

as the Distributors contend, it would have been sensible for them to use the same language in 

both provisions. They did not do so, which could support a conclusion that they intended the two 

provisions to have different meanings. 

Ultimately, the contracts themselves to not definitely resolve which of these two 

interpretations is correct. Accordingly, the contracts are ambiguous, and the parties may offer 

extrinsic evidence of the meaning of this provision. Unless that extrinsic evidence establishes the 

parties’ intent beyond dispute, though, the contracts’ meaning is a question of fact for the jury to 
27 

resolve. Celadon, 70 N.E.3d at 842. That is the case here, as none of the extrinsic evidence the 

parties offer resolves this question conclusively. 

For example, Biomet points to an email by Al Plows, another former distributor, who was 

a point person for the retired distributors in negotiating a potential buy-out with Biomet. In an 

email on which all of the plaintiff Distributors were copied, Mr. Plows requested verification that 

Biomet would “continue to honor [its] obligation to pay override commissions on any/all 

reconstructive products sold in [their] respective territories.” [DE 176-10 (emphasis added)]. 

This email supports Biomet’s position that the parties understood the long-term commissions to 

apply only to reconstructive products, not to products sold by other Biomet business lines.8

However, the Distributors at least created a dispute on that point, as they deny that Mr. Plows 

was speaking on their behalf or that he was representing them in his email (despite his use of the 

words “we” and “our”). 

Biomet also argues that the course of the parties’ performance over time sheds light on 

their understanding of the contracts’ meaning. In particular, it argues that it paid commissions in 

the same manner for decades, and that the Distributors never complained that Biomet was not 

paying commissions on the additional products until immediately before the Distributors filed 

suit. Again, however, that evidence is at least disputed, as the Distributors deny that they were 

aware over that time that Biomet was limiting the long-term commissions in that manner. 

 

8

 The Distributors moved to strike this exhibit as irrelevant, but relevance is not a valid basis for 

a motion to strike at summary judgment. If the exhibit is irrelevant, then it cannot create a 

genuine dispute of material fact and thus need not be stricken. Indeed, moving to strike on 

relevance grounds is just a backdoor way of offering additional arguments on the merits. But this 

exhibit is plainly relevant—even if disputed—so the Court denies the motion to strike. The Court 

need not address the other exhibits subject to the motion to strike, either, as they would not 

resolve the factual disputes even if they are admissible.
28 

The evidence the Distributors offer does not resolve this question beyond dispute, either. 

As with their motion for reconsideration, the Distributors cite the 2007 Weis agreement, arguing 

that because it explicitly limits the scope of products to which the long-term commissions apply, 

whereas the Distributors’ contracts do not, their contracts must not be so limited. But as 

discussed above, that contract, entered decades later between two non-parties to this case, would 

not require a jury to draw such a conclusion. The Distributors attempt to draw a similar analogy 

with a different agreement that Mr. Shera entered with Biomet in 1999, but that argument falls 

short for similar reasons. The other evidence they cite likewise fails to resolve this issue beyond 

dispute. Thus, the Court cannot grant summary judgment for either party on the construction of 

Section 9(e). 

That said, even if the Court adopted the Distributors’ preferred interpretation of this 

particular provision, it is not clear that that would produce the result they seek. Under Biomet’s 

interpretation of Section 9(e), the scope of products on which long-term commissions are due 

would be frozen in time as of the dates of the Distributors’ retirements. By contrast, the 

Distributors’ interpretation would sweep in any new products that Biomet began selling even 

after that date. The Distributors’ claim, however, is not based on new products that were added 

to their former distributorships after their retirements. Instead, the Distributors appear to seek 

long-term commissions on all products sold with a Biomet trademark or by any entity owned by 

Biomet. That includes products sold by other entities that Biomet acquired over time, whose 

products the Distributors were not authorized to sell or receive commissions on even while they 

were still active.9

 

9

 For example, in 1987, Biomet acquired Electro-Biology, Inc. (EBI), which made bone growth 

stimulators. EBI was a distinct entity that had its own sales force. After the acquisition, several 

of the Distributors asked for authority to distribute EBI products, but they were declined. Thus, 
29 

It is unclear how the Distributors ground that conclusion in the contracts. Section 1 grants 

the Distributors the exclusive right to distribute and receive commissions on “Biomet products” 

in their territories. But the contracts define “Biomet” as “Biomet, Inc.”—the party to the 

contract. The products subject to this claim include products sold by distinct entities (albeit 

entities owned by Biomet) as to which the Distributors did not have distributorship agreements 

and did not receive commissions during their years of active service.10 Even assuming that 

Section 9(e)’s reference to sales “within the subject distributorship” meant only the territory of 

the distributorships, the Distributors have not explained how the gross sales would include sales 

by distinct legal entities—entities that were not parties to these contracts and with which the 

Distributors did not have distributorship agreements. Given that missing link in their argument, 

the Court could not grant summary judgment in their favor even accepting their interpretation of 

the “subject distributorship” language. 

For its part, though, Biomet offers little detail about the structures or relationships of the 

various entities or their evolution over time. For example, the products that the Distributors sold 

within their distributorships (and on which Biomet agrees long-term commissions are due) are 

now sold by Biomet Orthopedics, Inc. That entity did not exist yet when the Distributors entered 

their agreements with Biomet Inc., and Biomet offers no explanation for when or how that came 

about. Biomet also grounds its motion for summary judgment solely on its construction of 

Section 9(e), which the Court has found ambiguous in this respect. Thus, while this issue may 

 

they did not sell EBI products as part of their distributorships and did not receive commissions 

on EBI products sold in their territories. However, they argue that they are still entitled to 

commissions on EBI products sold in their former territories.

10 Some of the Distributors were authorized to sell products for Arthrotek—another entity 

Biomet acquired—but they did so by entering separate distributor agreements with that entity. 

[DE 176-17 (appointing Mr. McCormick as a distributor for Arthrotek “separate and distinct 

from [his] Biomet distributorship”)]. 
30 

bear further exploration, the Court cannot grant summary judgment in Biomet’s favor either. 

Therefore, the Court denies both sides’ motions for summary judgment on the breach of contract 

claim. 

D. Future Damages 

Next, Biomet moves for summary judgment on the Distributors’ request for future 

damages on their breach of contract claim. The Distributors argue that because Biomet has 

disputed the scope of its obligation to pay retirement commissions, as just discussed, it has 

anticipatorily repudiated its contractual obligations. They thus argue that they should be able to 

recover not only past commissions that Biomet failed to pay, but also all commission payments 

that may come due in the future (including commissions on Biomet Orthopedic products, on 

which Biomet has paid commissions all along). Biomet disagrees, arguing that regardless of how 

the breach of contract claim is resolved, there is no basis for the Distributors to recover any 

future commission payments as damages. 

The Court grants Biomet’s motion, as the Distributors are not entitled to recover as 

damages future commission payments that have not yet come due. As discussed already relative 

to the statute of limitations, commissions under the long-term commissions program are based on 

the actual sales that occur—until those sales occur, Biomet is not obligated to pay commissions 

on them. The Distributors thus cannot recover in this action future commissions that have not yet 

come due. Griese-Traylor Corp. v. Lemmons, 424 N.E.2d 173, 183 (Ind. Ct. App. 1981) (holding 

that the trial court erred in “accelerating the installment obligations” that had not yet come due, 

as the contract did not include an acceleration clause). 

In arguing to the contrary, the Distributors argue that Biomet has anticipatorily 

repudiated its obligation to pay commissions on sales of products outside of their 

distributorships, so they are entitled to estimate what the future commissions would be (and for 
31 

how long they would be paid) and recover all of those amounts now. The Distributors cite no 

evidence that Biomet has repudiated any future contractual obligations, though. In fact, they cite 

no evidence at all on this point, so their argument fails for that reason alone. [DE 198 p. 28–29]. 

Instead, they cite only to Biomet’s brief, noting Biomet’s position that the contracts do not 

require it to pay commissions on products that were not within the Distributors’ distributorships. 

Taking that position is not a repudiation of the contract, though, even if the Distributors 

dispute that the payments are so limited. See Eden United, Inc. v. Short, 573 N.E.2d 920, 929 

(Ind. Ct. App. 1991) (“Where two contracting parties differ as to the interpretation of a contract 

or as to its legal effects, an offer to perform in accordance with his own interpretation made by 

one of the parties is not in itself an anticipatory breach.”). The whole point of the breach of 

contract claim is to resolve that dispute and determine whether Biomet is required to make those 

payments. The Distributors do not suggest that Biomet intends to defy the judgment should the 

breach of contract claim come out in the Distributors’ favor, and Biomet represents that it will 

make those payments going forward if the Distributors prevail on that claim. [DE 203 p. 17 (“If a 

more expansive interpretation of the [long-term commission program] is adopted by the Court, 

[Biomet] will broaden the scope of the retirement commissions accordingly.”)]. 

The Distributors are essentially trying to force a buy-out of all of their future commission 

payments. But a contractual dispute over the scope of future payments does not provide an 

excuse to liquidate all future obligations. Since the breach of contract claim will resolve whether 

Biomet has to make those payments going forward, there is no anticipatory repudiation, and the 

Distributors are not entitled to seek future damages. [See DE 47 p. 32–33 (dismissing the 

Distributors’ declaratory judgment claim since the breach of contract claim would serve to 
32 

resolve the scope of Biomet’s obligations moving forward)]. The Court therefore grants 

Biomet’s motion for summary judgment in this respect. 

E. Criminal Deception 

Biomet next moves for summary judgment on the Distributors’ claim for damages for 

criminal deception. Indiana law provides a civil cause of action to parties that suffer damages as 

a result of certain criminal offenses. Ind. Code § 34-24-3-1. A criminal conviction is not a 

condition precedent for such a claim, but the plaintiff must prove the elements of the offense by a 

preponderance of the evidence. French-Tex Cleaners, Inc. v. Cafaro Co., 893 N.E.2d 1156, 1166 

(Ind. Ct. App. 2008). As relevant here, the offense of criminal deception occurs when a person 

“knowingly or intentionally makes a false or misleading statement with intent to obtain 

property . . . .” Ind. Code § 35-43-5-3(a)(1). The Distributors argue that Biomet committed this 

offense by sending them commission statements that only reflected the sales of Biomet 

Orthopedic products, not the larger set of products that the Distributors argue are subject to the 

long-term commission program. 

The Court grants Biomet’s motion for summary judgment, as this claim is nothing more 

than a breach of contract claim involving two reasonable constructions of the contract. “[T]he 

Indiana legislature did not intend to criminalize bona fide contract disputes.” French-Tex, 893 

N.E.2d at 1168; accord Jamrosz v. Res. Benefits, Inc., 839 N.E.2d 746, 759 (Ind. Ct. App. 2005). 

Where the source of a party’s duty “arises from a contract, ‘then tort law should not interfere.’”11

 

11 The Distributors argue that Judge Lozano already rejected this argument in denying the motion 

to dismiss this claim. However, that order expressly limited its holding to the procedural posture 

in which it arose, as it based its holding on the standard of review that applies to a motion to 

dismiss and distinguished other cases on the basis that they arose at summary judgment. [DE 47 

p. 22–24]. That order thus does not govern the present analysis.
33 

French-Tex, 893 N.E.2d at 1168 (quoting Paniaguas v. Endor, Inc., 847 N.E.2d 967, 970 (Ind. 

Ct. App. 2006)). 

That is the case here. The Distributors do not argue that Biomet ever misrepresented to 

them the scope of products on which it was paying commissions. Instead, they argue that the 

commission payments and accompanying statements reflected only sales of Biomet Orthopedic 

products, not the additional products the Distributors contend are also covered by the long-term 

commission provision.12 But that is the same argument they make in support of their breach of 

contract claim, and the duty to pay commissions on those products arises, if at all, from those 

contracts. The damages the Distributors seek on this claim are also the exact same damages they 

seek on their breach of contract claim (before adjustments for interest): the amounts by which 

they contend they were underpaid. [DE 169-5]. The Distributors do not claim to have suffered 

any other injury in reliance on the commission statements. 

Indiana courts have rejected similar claims that try to leverage disputes over contract 

interpretation into tort claims or criminal violations. For example, in French-Tex, the parties 

entered a lease in which the amount due included the tenant’s pro rata share of all real estate 

taxes “imposed.” 893 N.E.2d at 1159. The tenant later claimed that the landlord overcharged it 

by requiring it to pay amounts that had not actually been imposed, so it sued for breach of 

contract as well as criminal conversion. As to the breach of contract claim, the Indiana Court of 

 

12 It is difficult to see the commission statements as false or misleading to begin with. The 

Distributors argue that where a commission statement referred to “sales” (to which the statement 

applied a percentage to calculate the commissions due in that period), the Distributors believed 

the statement to be referring to sales of all Biomet-branded products. The statement does not say 

that, though; it simply refers to “sales,” without further elaboration. [DE 169]. Only by assuming 

that the sales reported were based on the interpretation of the contracts that they now advance—

but never communicated to Biomet during this period—can the Distributors portray the figures 

as false or misleading.
34 

Appeals held that the contract was ambiguous, so it remanded for the parties to offer extrinsic 

evidence on the contract’s meaning. Id. at 1166. However, it affirmed the entry of summary 

judgment against the conversion claim, holding that “the gravamen of the present action is one of 

contract construction.” Id. at 1167. The contract at issue was ambiguous and the landlord acted in 

accordance with a reasonable interpretation of the contract, so the tenant could not support a 

claim that the landlord acted with criminal intent. Id. at 1168. 

That analysis applies equally here. The Distributors distinguish French-Tex solely on the 

basis that the contracts at issue here are unambiguous and that Biomet has violated the contracts’ 

clear commands. The Court has already rejected that argument, finding that the contracts are 

ambiguous. And as in French-Tex, Biomet acted in accordance with a reasonable interpretation 

of the ambiguous contracts, so the Distributors cannot establish that it committed a criminal 

offense. See also NationsCredit Commercial Corp. v. Grauel Enters., Inc., 703 N.E.2d 1072, 

1078 (Ind. Ct. App. 1998) (granting summary judgment on a criminal conversion claim because 

the “gravamen of the present action is contract construction” and the contract was deemed 

ambiguous, holding that the ambiguity “precludes a finding of the required mens rea”); 

Fritzinger v. Angie’s List, Inc., No. 1:12-cv-1118, 2013 WL 772864, at *3 (S.D. Ind. Feb. 28, 

2013) (dismissing a criminal deception claim based on allegations that the defendant charged 

more than was agreed to in a contract, noting that the gravamen of the claim was a breach of 

contract and that the defendant suffered no injury distinct from the injury it suffered from the 

breach). 

The Indiana Court of Appeals rejected another similar claim in Sheaff Brock Investment 

Advisors, LLC v. Morton, 7 N.E.3d 278 (Ind. Ct. App. 2014). There, an investment advisor’s 

contract entitled him to commissions on certain amounts received by his employer. After his 
35 

employment was terminated, he sued for breach of contract and constructive fraud, alleging that 

his employer improperly modified those amounts and concealed having done so. On the breach 

of contract claim, the court affirmed summary judgment in the plaintiff’s favor, holding that the 

employer miscalculated the amounts on which the commissions were due, in violation of the 

contract. Id. at 284–85. However, the court rejected the fraud claim. In support of that claim, the 

plaintiff alleged that his employer “did not provide documentation from which [he] could 

determine whether or not he was being paid appropriately and that [he] was forced to rely upon 

false and deceptive documentation provided by [his employer].” Id. at 288. The court held that 

this “was merely a repacking of his breach of contract claim.” Id. It noted that “breaches of 

contract will almost invariably be regarded by the complaining party as oppressive, if not 

outright fraudulent,” but since the plaintiff did not identify any “injury distinct from that alleged 

in his breach of contract claim,” the court affirmed summary judgment against the fraud claim. 

Id. Those factual allegations mirror the Distributors’ deception claim—that Biomet did not 

provide them with information showing that other products were being sold for which they were 

not being paid commissions—but the Distributors likewise fail to identify any injury they 

suffered apart from the alleged breach of contract. Their effort to repackage this breach of 

contract claim into a criminal offense in pursuit of additional damages thus fails. 

Finally, the Distributors’ brief fails to meaningfully develop factual support for this 

claim. In moving for summary judgment, Biomet argued in part that it never made any false or 

misleading statements. In response, the Distributors cited only a single commission statement 

sent to one of the six plaintiffs for a single two-week period. [DE 175 p. 35]. That commission 

statement contains minimal information beyond the amount of commissions being paid, but the 

Distributors argue that it was misleading because it included a column for “sales,” and they argue 
36 

that Biomet was only paying commissions on sales of reconstructive products. They never cite 

any evidence, though, that the sales figures in this commission statement were inaccurate even 

under their interpretation of the contracts—that other sales were made in that Distributor’s 

territory within the two-week period covered by that commission statement that should have 

been included but were not. 

Surely there is other evidence the Distributors could have cited in support of this claim. 

Each of the Distributors received many commission statements over the years, some of which 

may have contained other information that might be argued to be deceptive, and the Distributors 

might be able to prove inaccuracies in the statements. Some of that evidence may even be in the 

record or cited elsewhere in the filings. But summary judgment is the “put up or shut up” 

moment in a lawsuit, Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008), and requires the 

responding party to “cit[e] to particular parts of materials in the record” to support its claim, Fed. 

R. Civ. P. 56(c)(1)(A). See also Packer v. Trs. of Ind. Univ. Sch. of Med., 800 F.3d 843, 848 (7th 

Cir. 2015). That means that the arguments in a party’s brief must “cite specific parts of th[e] 

record in support of relevant factual arguments.” Packer, 800 F.3d at 849. Submitting materials 

as exhibits or referring to them in a statement of facts does not suffice without also incorporating 

them into a legal argument. Id. at 852 (refusing to consider a statement in the plaintiff’s brief 

because the plaintiff “supplied no record citation for that statement in the relevant section of her 

analysis” and “made no effort to weave such evidence into a cogent argument, grounded in case 

law, as to why a factfinder might be able to” find in her favor). The Distributors’ argument falls 

short of this standard. Besides a passing reference to an entire portion of their statement of facts, 

their argument cites only a single exhibit that, as just discussed, pertains to only one of the six 
37 

Distributors for a single period and that they failed to establish was inaccurate. [DE 198 p. 32–

34]. 

Therefore, the Court grants the motion for summary judgment as to the Distributors’ 

criminal deception claim. 

F. Affirmative Defenses 

Finally, the Distributors move for summary judgment on all of the affirmative defenses 

asserted in Biomet’s answer. However, they offered only skeletal arguments in support; their 

brief addresses Biomet’s seventeen affirmative defenses in the space of about one page, using 

bullet points that barely acknowledge the defenses, much less develop arguments for why 

summary judgment should be granted. Though the burden on a party moving for summary 

judgment is not heavy, this cursory discussion largely fails to meet that standard. For example, 

Biomet’s first two affirmative defenses are that the Distributors waived their claims or should be 

estopped from asserting those claims. The entirety of the Distributors’ discussion of those 

defenses is: “Defendants have failed to adduce any evidence supporting their allegation that 

Plaintiffs waived (or are estopped from asserting) their claims (Defenses 1 & 2).” [DE 168 p. 

24]. They do not cite authority governing those defenses or explain how the evidence falls short 

of meeting the applicable standard. Thus, for defenses like those that depend on factual 

development, the Court declines to entertain the motion. Hernandez v. Cook Cty. Sheriff’s Office, 

634 F.3d 906, 913 (7th Cir. 2011) (holding that “‘skeletal’ arguments may be properly treated as 

waived”). 

Other defenses, however, can be resolved by concession or as a matter of law. First, in 

response to the motion, Biomet agreed not to pursue several of the defenses, including numbers 4 

(failure to plead fraud with particularity), 7 (negligence by the Distributors), 11 (preemption by 

an arbitration agreement), 15 (violation of public policy), and 16 (restraint of trade). Other 
38 

defenses are not actually defenses, so they can be dismissed on that basis. In affirmative defense 

number 5, Biomet asserts that the “claims are barred as the agreements with Legacy Distributors 

relate solely to orthopedic appliances, devices and supplies.” But that argument about the scope 

of the contracts goes to the merits of the Distributors’ claim and will be resolved in that context; 

it is not an affirmative defense. Biomet also asserts in affirmative defense number 10 that the 

claims fail because of the parol evidence rule. Again, however, that is a rule of contract 

construction that goes to the merits of the Distributors’ claims, not an affirmative defense. 

Next, defense number 9 asserts the defense of frustration of purpose. That defense fails as 

a matter of law because Indiana law does not recognize such a defense. Justus v. Justus, 581 

N.E.2d 1265, 1275 (Ind. Ct. App. 1991). Finally, defense number 14 asserts the defense of 

failure of consideration. In Indiana, “[t]here is a failure of consideration when a party to a 

contract fails to perform those acts promised.” Alber v. Standard Heating & Air Conditioning, 

Inc., 476 N.E.2d 507, 510 (Ind. Ct. App. 1985); Zemco Mfg., Inc. v. Navistar Int’l Transp. Corp., 

270 F.3d 1117, 1122 n.3 (7th Cir. 2001) (“A party asserting the defense of failure of 

consideration is not really arguing that the contract lacks the necessary bargained for exchange. 

Rather, the party contends that his adversary has failed to perform her obligation under the 

contract.”). Biomet does not make such an argument, though. Instead, it argues that there is a 

failure of consideration because there was no mutual consideration for a promise to pay a 

commission “on all Biomet products.” [DE 178 p. 25]. That is plainly untrue. Regardless of 

which side prevails on the interpretation of the contracts, the consideration for the lifetime 

commissions was the Distributors’ agreement to join Biomet and to act as distributors for at least 

ten years. The Distributors did so, so this defense fails. 
39 

In all other respects, however, the Court denies the motion for summary judgment as to 

the affirmative defenses. Thus, affirmative defenses 1, 2, 3, 6, 8, 12, 13, and 17 remain pending. 

V. CONCLUSION 

The Court DENIES the motion for reconsideration or for leave to amend. [DE 157]. The 

Court also GRANTS in part and DENIES in part the motions for summary judgment. [DE 167, 

174]. The Court also DENIES the motion to strike [DE 186] and the motion for oral argument 

[DE 188] and GRANTS the motion to seal [DE 205]. 

 SO ORDERED. 

 ENTERED: March 20, 2019 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court