UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

CHARLES HESS, MARTY HIGGINS, 

ROBERT “GLEN” MCCORMICK, 

RONALD PAPA, AL TORNQUIST, and 

FRANK SHERA,

Plaintiffs,

v. Case No. 3:16-CV-208 JD

BIOMET, INC., and ZIMMER BIOMET 

HOLDINGS, INC.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendant Biomet, Inc. and Zimmer Biomet Holdings, 

Inc’s. (“Biomet”) Motion for Directed Verdict, which was orally made on August 6, 2021 and 

the Court took under advisement. For the reasons that follow, Biomet’s motion is denied. 

I. FACTUAL BACKGROUND 

The six individual Plaintiffs Charles Hess, Marty Higgins, Robert “Glen” McCormick, 

Ronald Papa, Frank Shera, and Al Tornquist (“Distributors”) formerly worked as distributors for 

Biomet. The Distributors sued Biomet for breach of contract, among other claims, in connection 

with their Distributorship Agreements, specifically regarding Section 9 of those agreements, 

which granted each Distributor long-term retirement commissions on products sold in their 

subject distributorships. In particular, the parties dispute whether the commissions are due only 

on products sold by the Distributors at the time they retired—as Biomet has interpreted the 

agreements—or apply more broadly to all Biomet products, even those that the Distributors did 

not and were not authorized to sell within their distributorships. Payments under that program 

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were calculated as percentages of the “total ‘net sales’” and the Distributorship Agreements 

define 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.

[See, e.g., DE 381-1 at 6]. At the summary judgment stage, the parties agreed that the “subject 

distributorships” are defined at least by their territories. However, the Distributorship 

Agreements also define the distributorships by their products. Therefore, in referring to sales 

within the “subject distributorship” at a given point in time, the agreements could plausibly be 

referring to the products sold within the distributorships as well as their territories. Accordingly, 

the Court found the agreements ambiguous, and the parties offered extrinsic evidence of the 

meaning of the provisions “within the subject distributorship.” The Court found that none of the 

extrinsic evidence offered at summary judgment resolved the ambiguity beyond dispute and the 

Court denied the parties’ motions for summary judgment as to the breach of contract claim. [DE 

210].

The parties tried their case to a jury from August 2 to August 9, 2021. At the end of the 

Distributors’ case-in-chief, both parties moved for a motion for judgment as a matter of law 

under Federal Rule of Civil Procedure 50. The Court took these oral motions under advisement 

and directed the parties to file briefing on the motions. Ultimately, the jury returned its verdict, 

finding that Biomet breached the Distributorship Agreements, in part, with each Distributor for 

failing to pay commissions owed for the net sales of sports medicine and trauma products. [DE 

379]. Mr. Shera was only awarded damages on trauma products. Id. On September 9, 2021, 

Biomet filed its brief in support of its motion for judgment as a matter of law in its favor. [DE 

381]. The Distributors did not file a brief in support of their previously made oral motion, and 

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therefore, given this and the favorable jury verdict, the Court deems their motion abandoned and

does not address it. The Distributors have responded in opposition to Biomet’s motion [DE 383], 

to which Biomet replied [DE 385]. 

II. STANDARD OF REVIEW

Rule 50 “allows a district court to enter judgment against a party who has been fully 

heard on an issue during a jury trial if ‘a reasonable jury would not have a legally sufficient 

evidentiary basis to find for the party on that issue.’” Passananti v. Cook Cty., 689 F.3d 655, 659 

(7th Cir. 2012) (citing Fed. R. Civ. P. 50(a)). “In deciding a Rule 50 motion, the court construes 

the evidence strictly in favor of the party who prevailed before the jury and examines the 

evidence only to determine whether the jury’s verdict could reasonably be based on that 

evidence.” Id.; see also Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 

815, 822 (7th Cir. 2016). The Court does not make credibility determinations, nor will it reweigh 

the evidence. Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 376 (7th Cir. 2011).

The Court does not ask “whether the jury believed the right people, but only whether it was 

presented with a legally sufficient amount of evidence from which it could reasonably derive its 

verdict.” Massey v. Blue Cross-Blue Shield of Ill., 226 F.3d 922, 924 (7th Cir. 2000).

“Overturning a jury verdict is not something that [a court does] lightly.” Id. at 925. It should do 

so only if “the moving party can show that no rational jury could have brought in a verdict 

against it.” Hossack v. Floor Covering Assoc. of Joliet, Inc., 492 F.3d 853, 859 (7th Cir. 2007) 

(internal quotations omitted).

III. DISCUSSION

Biomet argues it is entitled to judgment as a matter of law because “[e]ach Plaintiff has 

failed to submit evidence from which a reasonable jury could find Biomet was contractually 

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obligated to pay retirement commissions on products sold by its subsidiaries.” [DE 381 at 1]. 

Biomet asserts that the Distributors were in privity with Biomet, Inc. alone by the Distributorship

Agreements and no evidence supports disregarding the corporate form of Biomet and its 

subsidiaries. The Distributors argue that Biomet’s corporate veil-pricing argument is a strawman 

argument, the jury’s verdict was rational and supported by the evidence, and Biomet’s corporate 

separateness is a post-hoc attempt to justify the Distributors receiving retirement commissions 

from Orthopedic Equipment Company (“OEC”) and Biomet Orthopedics, Inc., two Biomet 

subsidiaries. 

Biomet contends that the Distributors seek a judgment that would hold Biomet’s 

subsidiaries accountable for the parent’s liabilities. However, none of Biomet’s subsidiaries are 

parties to this action and therefore no judgment will be entered against them. The verdict 

obligates Biomet for damages based on its failure to pay retirement commissions the jury found 

were required under the Distributorship Agreements. The verdict form asked the jury for each 

plaintiff, “[d]id Defendant Biomet, Inc. breach the Distributorship Agreement with Plaintiff 

[name]?” If the jury answered that question “yes” they were next asked which products they find 

Biomet, Inc to have “fail[ed] to pay commissions owed for the net sales.” [DE 379 at 2–13]. 

While Biomet presents several cases in its briefing, they are inapplicable to the instant facts and 

cites no case supports its argument that entering a judgment consistent with this verdict pierces 

Biomet’s corporate veil. By entering a judgment against Biomet, the Court simply deems Biomet 

liable, consistent with what the jury concluded, for its own breach of the Distributorship 

Agreements, to which Biomet is a named party. How Biomet plans to satisfy the judgment does 

not impact the legal sufficiency of the evidence before the jury, which the Court addresses in 

more detail below. The Distributors never pled veil-piercing, Biomet never asserted it as an 

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affirmative defense, nor did Biomet ever assert this legal argument prior to trial, only presenting 

it for the first time in its Rule 50 motion at the close of the Distributors’ case-in-chief and again 

at the close of the evidence in its attempt to submit a jury instruction on the issue of Biomet 

being separate and distinct from its subsidiaries, which the Court denied. [DE 376, Vol. VI at 4–

5]. 

Biomet argues that the issue of corporate veil piercing has been in controversy in this 

litigation, at the very least, since the Court’s March 29, 2019 summary judgment order. Biomet 

clings to the Court’s order as support for its argument that the Distributor’s failed to submit 

evidence to the jury that warrants ignoring Biomet’s corporate form. In its Order, the Court 

stated: 

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.[]

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.[] 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 

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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 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.

[DE 210 at 29–30]. Biomet emphasizes the Court’s statement that the Distributors had a 

“missing link” in their summary judgment argument that all Biomet products, even those sold by 

distinct entities owned by Biomet, but not parties to the contract, should be included in their 

retirement commissions. However, Biomet fails to read the full quoted text above. The Court 

notes that it could not ascertain how the Distributors “ground that conclusion in the contracts.” 

The “missing link” is a disputed fact that required extrinsic evidence presented to the finder-offact at trial. A trial has now occurred, and the parties presented their extrinsic evidence to the 

jury and the Court finds, as discussed below, that the jury’s verdict is sufficiently supported by 

the evidence that Biomet historically paid retirement commissions under the agreements, even if 

the products were sold by subsidiaries, therefore allowing a jury to conclude that the parties 

intended this on all products included under the Agreements. Second, the Court’s summary 

judgment order also notes Biomet’s shortcomings in establishing the parties’ intent under the 

contract and while Biomet did not bear the burden at trial, it submitted evidence that legally 

supports the jury’s verdict, discussed more thoroughly below. 

The Court further notes, that while Biomet maintained an objection to the Distributor’s 

request for the inclusion of a Jury Instruction leading up to trial regarding another legal issue

[DE 334; DE 339; DE 351], which the Court overruled, in part [DE 355], it did not object to the

Jury Instruction including the summary of the dispute and the specific question of contract 

interpretation submitted to the jury. Jury Instruction No. 23 stated:

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The parties dispute the meaning of the contractual provision that entitles the 

Plaintiffs to commission payments based on sales made “within the subject 

distributorship at the time” of the Plaintiffs’ retirements. In particular, they dispute 

whether the phrase “within the subject distributorship” refers only to the 

geographic territory of the distributorship, or to both the geographic territory of 

the distributorship and the product lines subject to the distributorship agreement.

In deciding the meaning of that provision, you should determine what the parties 

intended at the time they made the contracts. In doing so, you can consider all of 

the evidence, including the language of that provision, the language of the contracts 

as a whole, as well as statements or conduct by the parties reflecting their intent or 

their understanding of the provision’s meaning.

[DE 386 at 26] (emphasis added); DE 334 at 1 (“To the extent the Court also sought any 

objections or supplements to the Court’s Proposed Final Jury Instructions at this stage, Biomet 

has no objections to the Proposed Final Jury Instructions but does object to Plaintiffs’ proposed 

supplemental inclusion of its previously tendered Proposed Final Instruction No. 5: Ambiguity 

Construed Against the Drafter.”)]. Biomet did not object to this being the question before the 

jury. It did not seek a jury instruction regarding Biomet’s corporate separateness from its

subsidiaries until the close of evidence, despite having ample opportunity to raise the issue with 

the Court. When the Court asked Biomet’s counsel why he was raising this modification when 

Biomet has had the proposed instructions for “a long, long time,” given the various continuances 

of trial, counsel candidly responded that it was “because it occurred to [him] in the last couple of 

days.” [DE 373, Vol. V at 219]. As the Court noted in its ruling denying Biomet’s request to 

include the jury instruction modification, Federal Rule of Civil Procedure 51(a)(2), permits a 

party, at the close of evidence, to submit “requests for instructions on issues that could not 

reasonably have been anticipated by an earlier time that the court set for requests.” [DE 376, Vol. 

VI at 2–3]. Under Rule 51(a)(2), Biomet’s proposed modification was untimely, as Biomet’s 

counsel asserted on the record, the jury instruction was based upon things known by Biomet for 

years. Biomet’s failure to assert this argument, which as the Court previously ruled lends itself to 

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a factual interpretation of the parties’ intent under the agreements, until the eve of closing 

arguments is one detrimental aspect to its motion. [See DE 376, Vol VI at 3–4 (“From the 

Court’s perspective, whether the plaintiffs are entitled to commissions on all products sold in 

their territories, even though sold from Biomet’s subsidiaries under their original Distributorship 

Agreements is a disputed fact before the jury, as indicated in the Court’s order resolving the 

parties' motion for summary judgment under Docket Entry 210.”)].

Biomet also argues that because the Distributors based its damages only on product 

category, the jury’s verdict will require legal entities other than Biomet, Inc. to disgorge a 

percentage of their profits in order to pay the Distributor’s commissions. Biomet criticizes the 

Distributors categorical product approach during trial, however, throughout this entire litigation, 

both parties disputed the scope of products that are meant to be included under the long-term

commission payments and referred to the products categorically. Prior to trial, in its summary 

judgment briefing, Biomet argued that the contracts entitle the Distributors to long-term 

commissions on the same set of products they were authorized to sell during their 

distributorships—primarily reconstructive products or joint-replacement products. The evidence 

at trial establishes that at least one of Biomet’s interpretation of the contract was based on this 

product category approach, specifically, in its sworn interrogatory response Biomet stated “the 

categories of products for which [the Distributors’] retirement commissions are calculated 

include: cement, extremities, foot and ankle, hips, knees, microfixation, sports medicine, 

surgical, and trauma products, along with some miscellaneous products.” PX 52.003; PX 174.

The only objection Biomet raised as to the verdict form was the inclusion of “Other Products,” 

which ultimately the parties stipulated to removing. [DE 359]. Biomet cannot now change its 

position, not only on the entire scope of the parties’ dispute, but also on the structure of the

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verdict form when it did not object to it both prior to trial commencing and after the close of 

evidence. [DE 373, Vol. V at 228; DE 334 at 1 (“Biomet has reviewed the Court’s Proposed Voir 

Dire, Proposed Preliminary Jury Instructions, and Proposed Verdict Forms and, in accordance 

with the Court’s instructions, has determined it does not have any objections or supplements to 

those filings and therefore did not file a pleading noting that position.”) (emphasis added)]. 

Regardless of Biomet’s late-in-the-game arguments, ultimately, in construing the 

evidence strictly in favor of the Distributors and examining the evidence only to determine 

whether the jury’s verdict could reasonably be based on that evidence, the Court finds that the 

verdict is reasonably based on and supported by the evidence at trial. The evidence was legally 

sufficient for a rational jury to conclude that when executing the Distributorship Agreements, the 

parties intended the retirement commissions to be calculated on products sold by Biomet, Inc., 

which can include those sold by its subsidiaries, and Biomet is obligated to pay the retirement 

commissions on those products under the Agreements. First, the Court reiterates that Biomet’s 

sworn interrogatory responses were before the jury. In one of those responses, Biomet stated that 

the categories of product on which the Distributor’s receive retirement commissions included the 

subsidiary products “sports medicine” and “trauma products.” PX 52.003. The jury found 

Biomet breached the Distributor Agreements as to these products. This interrogatory response 

does not specify that the sports medicine or trauma products cannot be sold by one of Biomet’s 

subsidiaries. This evidence alone is sufficient for a rational jury to conclude that the parties’ 

intent was for net sales of sports medicine and trauma products to be included in the Distributor’s 

retirement commission calculations. The Distributors all testified that they were not receiving 

retirement commissions on sports medicine and trauma products. [DE 365, Vol. I at 131 (Mr. 

Hess); DE 367, Vol. II at 110 (Mr. Hess), 137–38, 165 (Mr. Papa), 223–24, 234 (Mr. 

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McCormick); DE 371, Vol. IV at 161–62; DE 373, Vol. V at 29 (Mr. Higgins), 142–43 (Mr. 

Tornquist)]. Therefore, it was rational for the jury to find Biomet in breach of the Distributor 

Agreements for failing to pay retirement commissions on those products based on its own 

interrogatory response.

Second, Mr. Daniel Hann, Biomet’s former general counsel, frequently testified at trial to 

his understanding of the parties’ intent under the Distributorship Agreements as it relates to the 

long-term commission program. In doing so, Mr. Hann rejected the position that Biomet now 

takes on multiple occasions—that if a product was sold by a Biomet subsidiary, it cannot be 

included in the net sales calculation for the retirement commissions:

Q: [I]t also doesn’t matter, sir, on whether or not [the Distributors] get paid 

retirement commissions, whether it was, to use your terms, a product that was the 

result of organic growth internally or inorganic growth as a result of an acquisition, 

correct?

A. If it was put in their bucket, yes.

Q. So, in other words, if [the Distributors are] selling a product on the day they 

retired, they get a commission, whether it was homegrown or whether it was the 

result of a company that Biomet acquired, if it’s in their bucket, right?

A. Yes.

[DE 371, Vol. IV at 23] (emphasis added).

Q. I think it’s been suggested that unless—for one of Biomet’s subsidiaries, unless 

these gentlemen had a separate retirement program for that subsidiary, they are not 

entitled to be paid retirement commissions. Is that not your position?

A. That is not my position.

Id. at 36–37 (emphasis added).

Q. It is not Biomet’s position, is it, that they can simply take a certain product group, 

put it into a subsidiary and say, [w]e’re not entitled to retirement commissions 

because they’re generated from the subsidiary as opposed to Biomet, Inc. I mean, 

Biomet is not taking that position in this case, are they?

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A. No, and that’s not what we’ve done. Again, it’s what those products were at the 

date of retirement. That defines the boundaries.

Q. I understand. So we can agree that the mere fact that there is a subsidiary, one 

of these SBU entities, if the products are being sold through that subsidiary, that 

fact alone does not mean that we don't get retirement commissions. Can we agree 

on that?

A. Yes, I believe that’s correct.

[DE 369, Vol. III at 185] (emphasis added). This interpretation of the Agreements, which a 

reasonable jury is permitted to accept, is legally sufficient to support the jury’s verdict.

Further, the Distributors testified that they never intended for Biomet to be able to carve 

out products from their retirement commissions by creating or acquiring a subsidiary and had 

they thought that would be the case, they would have never agreed to the Distributorship 

Agreement. [DE 367, Vol. II at 107–08 (Mr. Hess), 234 (Mr. McCormick); DE 371, Vol. IV at 

148, 154 (Mr. Shera)]. The evidence indicated that in the early 1980s, when Biomet recruited the 

Distributors from Zimmer, Biomet offered a “very thin catalog” with “very few products,” none 

of which physicians could use. [DE 365, Vol. I at 111 (Mr. Hess); see also DE 367, Vol. II at 

123 (Mr. Papa), 191–92 (Mr. McCormick)]. Because Biomet could not offer the Distributors 

many products, Biomet could not offer the Distributors money, at least in the short term. [DE 

365, Vol. I at 112 (“[I]f you don’t have many products . . ., you’re not going to have many sales. 

That’s why a company like Zimmer, that had a giant catalog with a lot of good products, 

translated into more commission.” (Mr. Hess))]. 

What Biomet did offer, however, was the opportunity to become wealthy through 

retirement commissions. As Mr. Hess testified, “[Mr. Miller] said, ‘You guys aren’t really going 

to make your money being distributors.’ He said, ‘You’re going to make your wealth through the 

retirement program.’” Id. at 116. Mr. Hess testified that Mr. Miller was clear that he was 

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“contemplating not only developing the company through inside product development but also 

through being able to pick up other companies and other products.” Id. at 125. Mr. Tornquist 

testified that Mr. Miller told him “once the company grows, why, it’s our intention to acquire 

other companies.” [DE 373, Vol. V at 74]. Each Distributor testified, that at the time they 

executed their respective Distributorship Agreements, they intended the retirement commissions 

would be earned on all products sold by Biomet in their former territories. [DE 367, Vol. II at 82, 

106, 110 (Mr. Hess), 127–28, 130–31, 160 (Mr. Papa), 233–34 (Mr. McCormick); DE 371, Vol.

IV at 151 (Mr. Shera); DE 373, Vol. V at 32 (Mr. Higgins), 77 (Mr. Tornquist)]. This evidence 

provides sufficient basis for the jury to conclude that whether or not a product is sold from 

Biomet’s subsidiary is not dispositive as to whether the Distributors are owed retirement 

commissions based on the parties’ intent at the time of entering the contract. Considering this 

evidence in the light most favorable to the Distributors, it is rational and reasonable for a jury to 

conclude that the parties’ intent was not to exclude products for the sole reason that they were

sold by its subsidiaries when calculating the retirement commissions. 

The jury also received evidence regarding Biomet’s course of performance under the 

Distributor Agreements over the years, particularly regarding the commissions it did pay to the 

Distributors after they retired. In 1984, Biomet acquired OEC, one of its first acquisitions. [DE 

367, Vol. II at 108]. Biomet Orthopedics, LLC is another subsidiary, which Biomet created in 

1999. PX 223. Prior to this action, the Distributors were being paid retirement commissions on 

products sold through Biomet Orthopedics and OEC, despite neither being in existence when the 

agreements were executed. [DE 365, Vol. I at 12 (indicating that all contracts had been executed 

by 1983); PX 223 (indicating that OEC was acquired in 1984 and that Biomet Orthopedics was 

created in 1999); DE 369, Vol. III at 180–81]. Mr. Hann also testified to this:

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Q. [Y]ou agree there’s no contract between the distributors and Biomet 

Orthopedics, LLC, correct?

A. Correct.

Q. Yet, we get paid on the reconstructive products notwithstanding the lack of a 

contract with that particular subsidiary [Biomet Orthopedics LLC], right?

A. Correct.

[DE 369, Vol. III at 187]. 

Q. Now, OEC, a wholly-owned subsidiary of Biomet, you know, do you not, that 

these plaintiffs are getting paid retirement commissions on OEC products or 

whatever the natural evolution of those OEC products are? That’s one thing 

retirement commissions are being paid on, correct?

A. Yes.

Q. Notwithstanding that OEC is a subsidiary of Biomet, Inc., correct?

A. It was, yes.

[DE 371, Vol. IV at 36]. 

However, Biomet argues that its payment of retirement commissions on products sold 

through these subsidiaries does not support the verdict. Biomet argues that there was evidence 

presented to the jury that Biomet Orthopedics “voluntarily ratified” the obligations under the 

Distributor Agreements, which is an exception to the general rule of privity. [DE 381 at 6]. 

Biomet never presented this theory to the jury or the Court. In considering the evidence strictly

in favor of the Distributors, the evidence does not support that these subsidiaries voluntarily 

assumed or ratified the obligations. The evidence Biomet cites to support this argument simply 

does not provide the jury with the background that Biomet Orthopedics voluntarily assumed

Biomet’s obligations under the Distributorship agreements. Biomet submitted evidence that 

Biomet Orthopedics’ products were “rolled into Biomet” and their products were “combined 

within the distributors’ agreement.” [DE 371, Vol. IV at 61]. However, this evidence does not 

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contradict the conclusion that other subsidiaries, such as Biomet Sports Medicine or Biomet 

Trauma, can and should be treated the same way under the contract. Contrary to Biomet’s 

argument, the evidence does not establish that this was a “ratification” of the Distributorship 

Agreements. The evidence shows that the subsidiaries and Biomet were interchangeably listed 

on the Distributors retirement commission reports. Biomet’s own commission statement were 

issued through subsidiaries (Biomet Orthopedics, Inc.) or the parent (Biomet, Inc.) depending on 

the time period in question. (Compare PX 2 at 1 (June 2001 commission statement issued by 

Biomet Orthopedics, Inc.), with PX 2 at 900 (April 2014 commission statement issued by 

Biomet, Inc.). This evidence could reasonably lead the jury to conclude that Biomet was 

obligated to pay the retirement commissions regardless of what entity was selling the product or 

alternatively that the obligation to pay the retirement commissions on any subsidiary products 

that fell within the Agreements’ definition might also be paid directly by that subsidiary, despite 

it not being a party to the Agreements. There was sufficient evidence for a reasonable jury to 

conclude that Biomet was responsible for paying the retirement commissions, regardless of 

where the Biomet product was sold from. The jury was permitted to find that any attempt by 

Biomet to justify its course of performance with respect to Biomet Orthopedics and OEC was not 

evidence of the parties’ then-existing intent but a post-hoc rationalization of Biomet’s breach.

Additionally, there was legally sufficient evidence at trial for the jury to conclude that 

because the distributors sold sports medicine and trauma products prior to their retirement, those 

products, and their evolution, should be included under the retirement commissions and Biomet’s 

failure to pay these commission is a breach of the Distributorship Agreements. The Court notes

that this was Biomet’s predominate interpretation of the contracts—if the Distributors sold the 

products during their time as an active distributor, they are entitled to retirement commissions on 

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those products sold in their territories. In 1990, before any of the Distributors retired, Biomet 

acquired Arrow Surgical Technologies, renamed it Arthrotek, and ultimately was rebranded as 

Biomet Sports Medicine, LLC in 1990, which sold sports medicine products. [DE 369, Vol. III at 

181]. The evidence establishes that the Distributors sold sports medicine products during their 

active distributorship. [DE 365, Vol. I at 100 (Mr. Hess); DE 367, Vol. II at 63–64 (Mr. Hess), 

130 (Mr. Papa), 210–14, 221–22 (Mr. McCormick); DE 371, Vol. IV at 146–47 (Mr. Shera); DE 

373, Vol. V at 20, 38–39 (Mr. Higgins), 83, 142 (Mr. Tornquist)]. During their time as active 

distributors, the Distributors were authorized to distribute Arthrotek sports medicine products, 

but they were granted that authorization through separate distributorship agreements that they 

entered into with Arthrotek. Those Arthrotek agreements did not mention retirement 

commissions. However, it is reasonable for the jury to conclude, based on this evidence, that 

because the Distributors sold sports medicine products during their active distributorship, they 

were entitled to retirement commissions on sports medicine products, regardless of the separate 

agreement since it was silent as to retirement commissions. 

Further, the Distributors testified that the intent behind the retirement commissions was 

to include products and product lines as they evolve. [DE 367, Vol. I at 110]. Mr. Hess testified 

that the anticipation that Biomet would continue to grow was the “whole essence of taking the 

risk.” [DE 365, Vol. I at 72]. Mr. Hann also testified that whenever a product evolved that 

Biomet was paying a retirement commission on, the Distributors would continue to receive the 

commissions on the new products. [DE 369, Vol III at 210–11, 213; DE 371, Vol. IV at 19]. Mr. 

Hann further testified that there was no distinct test for how Biomet determines what is 

considered the “natural evolution” of a product. [DE 371, Vol. IV at 19–20]. It is rational for the 

jury to conclude that the sports medicine products that the Distributors actively sold, which have 

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evolved and grown and are now sold through the subsidiary Biomet Sports Medicine, were 

intended by the parties to be included in retirement commissions, just as the orthopedic products 

have grown, evolved, and are now sold through Biomet Orthopedics, on which they receive 

retirement commissions. 

The same goes for trauma products. The evidence at trial indicates that the Distributors 

sold certain trauma products throughout their active distributorship. [DE 367, Vol. II at 109 (Mr. 

Hess), 130 (Mr. Papa), 210–14, 221–22 (Mr. McCormick); DE 371, Vol. 146–47 (Mr. Shera); 

DE 373, Vol. V at 20 (Mr. Higgin), 83, 142 (Mr. Tornquist)]. Mr. Hann testified that the 

distributors were selling certain trauma products when they retired, and Biomet argues they are 

receiving commissions on those certain trauma products. [DE 369, Vol. III at 124–26]. However, 

the Distributors testified to not receiving retirement commissions on trauma products. [DE 365, 

Vol. I at 131 (Mr. Hess); DE 367, Vol. II at 110 (Mr. Hess), 137–38, 165 (Mr. Papa), 223–24, 

234 (Mr. McCormick); DE 373, Vol. V at 29 (Mr. Higgins), 142–43 (Mr. Tornquist)]. In 2012, 

after the Distributors retired, Biomet invested in a line of trauma products from Depuy, and these 

assets were put into a subsidiary called Biomet Trauma, LLC, which was created in 2010. 

Biomet Trauma is a subsidiary of Biomet Orthopedics. [DE 369, Vol. III at 49, 181]. It is rational 

for the jury to conclude that the trauma products that the Distributors actively sold, which have 

evolved and grown and are now sold through the subsidiary Biomet Trauma, were intended by 

the parties to be included in retirement commissions, just as the orthopedic products have grown, 

evolved, and are now sold through Biomet Orthopedics, on which they receive retirement 

commissions. Given that the evidence shows that the Distributors sold both the sports medicine 

products and trauma products available to them at the time of their active distributorship, it is 

rational for the jury to conclude that Biomet’s evolution of those product lines are interpreted to 

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be under the Agreements, regardless of whether they are sold by a Biomet subsidiary and 

therefore, Biomet is obligated to pay retirement commissions for those products. 

Lastly, in its reply, Biomet asserts that the Distributors state, “Biomet knew how to draft 

contracts to exclude subsidiaries,” because it did so in the “1999 Biomet-Shera Settlement 

Agreement.” [DE 385 at 7–8]. Biomet argues that the Distributors concede Mr. Shera’s 

Settlement Agreement was an “express exclusion of subsidiaries,” therefore Mr. Shera is not 

entitled to the jury’s verdict of $775,040 for trauma products. However, the Court does not find 

the Distributors’ response to be a concession regarding Mr. Shera’s retirement commissions, 

which is what the jury verdict decided. The Distributors were arguing that the jury was permitted 

to reject Biomet’s justifications and to infer that Biomet’s express exclusion of subsidiaries in 

one contract (the 1999 Biomet-Shera Settlement Agreement) implies Biomet’s inclusion of 

subsidiaries in another set of contracts (the Distributorship Agreements). [DE 383 at 16 n.8]. Mr. 

Shera testified to the language of his Settlement Agreement and explained it was his 

understanding that it did not have anything to do with his claim to retirement commissions. [DE 

371, Vol. IV at 159]. The Distributors’ counsel argued during closing argument that the six-year 

program that was the subject of Mr. Shera’s Settlement Agreement “has nothing to do with Mr. 

Shera’s retirement program.” [DE 376, Vol. VI at 62]. Mr. Shera did not concede what he was 

entitled to with regard to his retirement commissions. The Court finds Biomet’s argument 

regarding the jury’s verdict for Mr. Shera without merit. The jury was permitted to conclude the 

Settlement Agreement did not impact his retirement commissions and therefore the jury’s verdict 

was sufficiently supported by the evidence. 

IV.CONCLUSION

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For the reasons set forth above, the Defendants’ motion for a judgment as a matter of law 

is DENIED. [DE 381]. If the Defendants intend to move on their remaining equitable affirmative 

defenses, they must do so 14 days after the issuance of this Order. Plaintiffs’ response is due 14 

days after Defendants’ motion is filed and any reply must be filed 7 days after the response is 

filed. With regard to Plaintiffs’ Motion for Prejudgment Interest [DE 384], the parties must 

comply with the standard motion practice briefing schedule in Local Rule 7-1(d). To the extent 

the parties believe those motions require oral argument, they may request oral argument and 

explain why oral argument is necessary, consistent with Local Rule 7-5. With that, the Court 

DENIES AS MOOT Plaintiffs’ Motion to Set Briefing Schedule. [DE 387].

SO ORDERED.

ENTERED: November 22, 2021

 /s/ JON E. DEGUILIO

Chief Judge

United States District Court

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