08/04/2021
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Biomet Fails To Escape Mo. Jury's $21M Hip Implant Verdict
By Rachel Scharf
Law360 (August 3, 2021, 3:48 PM EDT) -- Biomet Inc. can't nix a $21 million jury verdict in favor of a woman injured by allegedly defective hip implants, a Missouri federal judge said Monday as he rejected a slew of post-trial motions brought by the medical device maker.
In three separate opinions, U.S. District Judge Stephen R. Clark denied Biomet's requests for a new trial, judgment as a matter of law or to alter the November verdict entered in favor of Mary Bayes and her husband Philip Bayes over purported issues with Biomet's M2a Magnum metal-on-metal hip replacement product.
Biomet had argued that it was excessive to award $21 million worth of damages to Mary Bayes, who has dislocated her hip 12 times and undergone seven revision surgeries since having both her hips replaced with M2a Magnum implants in 2008.
The company said that number is significantly higher than the damages awarded in other cases over the M2a Magnum product, such as a recent $3.5 million jury verdict out of Idaho. Biomet also cited smaller damages figures entered against other medical device makers who sold allegedly shoddy metal-on-metal hip implants, including in 2016 multidistrict litigation against Johnson & Johnson.
But Judge Clark said Mary Bayes is entitled to higher damages than those other plaintiffs because she's endured far greater pain and been forced to go under the knife more times since her first hip replacements.
"The verdicts returned in other metal-on-metal hip replacement cases involving less-serious damages compared to those suffered by Mrs. Bayes demonstrates that the jury in this matter did not return an excessive verdict," the judge said.
Judge Clark was similarly unconvinced by Biomet's various other arguments, including that one juror's positive COVID-19 test should have resulted in a mistrial and that its victory over the Bayeses' strict liability claim should have automatically nixed their negligent design allegations.
Because negligent design is "inextricably" bound up with strict liability, Biomet had argued, the Bayeses shouldn't have been able to prevail on one claim and lose on the other. But Judge Clark disagreed, finding that the opposing verdicts can be "easily harmonized" under Missouri law.
And even if not, the judge noted, Biomet gave up the chance to object to the dual verdict when it signed off on the jury instructions ahead of time.
"Biomet only objected that the verdicts were inconsistent after the verdicts were returned," Judge Clark said. "Biomet cannot agree to jury instructions and a verdict form, receive an unfavorable verdict, and then argue that the instructions and verdict form produced an inconsistent verdict."
Biomet had also sought to reverse the verdict on the grounds that the Bayes' lawyer, Darin Schanker of Bachus & Schanker LLC, engaged in misconduct during the trial by bringing up outside litigation against Biomet and discussing a failure-to-warn claim that had previously been dismissed.
While Judge Clark agreed that Schanker did run afoul of court rules, he said his instructions for the jury to ignore the inappropriate statements were enough to prevent any prejudice from seeping into the verdict.
"Schanker's misconduct, while unprofessional, did not affect the substantial rights of Biomet, based on the record as a whole," the judge said.
In a comment to Law360 Tuesday, Schanker said he's glad Judge Clark did not allow Biomet to "deflect" from the verdict's validity by referencing these misconduct findings.
"At times, Judge Clark found that I pushed the envelope," Schanker said. "Such incidents were unintentional, and I had only my client's interests at heart. Crucially, Judge Clark found that such incidents were minor in the grand scheme of the trial and did not impact the outcome"
Schanker added that his clients are pleased with the judge's "thorough and detailed" opinions upholding their trial win.
"The Bayes family is happy to have had their day in court with Biomet finally being held responsible for its defective product," he said.
Biomet's counsel declined to comment Tuesday on the orders, but told Law360 they intend to appeal the verdict to the Eighth Circuit.
The Bayeses are represented by Darin Schanker, J. Chris Elliott, Melanie R. Sulkin and J. Kyle Bachus of Bachus & Schanker LLC; Michael Quillin, Michael Dalton and James D. O'Leary of O'Leary Shelton Corrigan Peterson Dalton & Quillin LLC; James G. Onder of Onder Law LLC; Maurice B. Graham of Gray Ritter PC; Jessica A. Perez of Pendley Baudin & Coffin LLP; and Zachary Wool of Barrios Kingsdorf & Casteix LLP.
Biomet is represented by Adrienne Busby, Andrew L. Campbell, Heather Carson Perkins, John Joseph Tanner, Mary Hershewe, Matthew Albaugh, Michelle M. Tessier, Stephanie A. Koltookian, Stephanie N. Russo, Thomas J. Joensen, Victoria Calhoon, Bryan D. Pasciak and John Mandler of Faegre Drinker Biddle & Reath LLP; Erin Linder Hanig and John D. LaDue of LaDue Curran & Kuehn LLC; and Troy A. Bozarth and Mary Elizabeth Dyer Kellett of HeplerBroom LLC.
The case is Bayes v. Biomet, case number 4:13-cv-00800, in the U.S. District Court for the Eastern District of Missouri.
--Additional reporting by Cara Salvatore, Mike Curley and Sarah Jarvis. Editing by Kelly Duncan.
Update: This story has been updated with comment from the Bayeses' counsel.
