Bayes v. Biomet, Inc.

500 F.Supp.3d 810

Mary BAYES and Philip Bayes, Plaintiffs,

v.BIOMET, INC., et al., Defendants.

Case No. 4:13-cv-00800-SRC

United States District Court, E.D. Missouri, Eastern Division.

Signed November 12, 2020

Darin L. Schanker, J. Kyle Bachus, John Christopher Elliott, Melanie R. Sulkin, Bachus and Schanker LLC, Denver, CO, James D. O'Leary, James G. Onder, Michael J. Quillin, O'Leary and Shelton LLC, Maurice B. Graham, Gray and Ritter PC, St. Louis, MO, Jessica A. Perez, Pro Hac Vice, Pendley and Braudin, Plaquemine, LA, Zachary Wool, Pro Hac Vice, Barrios Kingsdorf LLP, New Orleans, LA, for Plaintiffs.

Adrienne Busby, Pro Hac Vice, Andrew L. Campbell, John Joseph Tanner, Mary Hershewe, Pro Hac Vice, Matthew Albaugh, Pro Hac Vice, Faegre Drinker LLP, Indianapolis, IN, Erin Linder Hanig, John D. LaDue, LaDue Curran and Kuehn LLC, South Bend, IN, Heather Carson Perkins, Pro Hac Vice, Faegre Drinker LLP, Denver, CO, Michelle M. Tessier, Pro Hac Vice, John P. Mandler, Faegre Drinker LLP, Minneapolis, MN, Stephanie A. Koltookian, Thomas J. Joensen, Faegre Drinker LLP, Des Moines, IA, Stephanie N. Russo, Victoria Calhoon, Faegre Drinker LLP, Indianapolis, IN, Troy A. Bozarth, Mary Elizabeth Dyer Kellett, Hepler Broom LLC, Edwardsville, IL, Bryan D. Pasciak, Faegre Drinker LLP, Chicago, IL, James A. Frederick, Faegre Drinker LLP, Washington, DC, for Defendants.

Memorandum and Order

STEPHEN R. CLARK, UNITED STATES DISTRICT JUDGE

Over seven years ago, Mary and Philip Bayes filed this product-liability case, seeking compensation for what she claims is a defective hip-implant system that resulted in multiple revision surgeries. The case was consolidated in multi-district litigation, and the extensive MDL discovery spanned more than five years. Since remand from the MDL, the parties have conducted two more years of case-specific discovery. Now—over seven years into the case—Biomet filed a motion to disqualify lead counsel for the Bayeses. Doc. 111. Two days later, Biomet filed a motion to continue the trial date. Doc. 127. Keeping this long-running case moving forward, the Court denied both motions, issuing a summary order on the motion to disqualify but promising a more detailed order to follow.

Docs. 163, 169. This is the more detailed order.

Since the summary order, the Court has ruled on multiple motions, setting forth in detail the facts of the case. See Docs. 225, 251, 252. The Court also bifurcated the trial, and conducted phase one from October 5, 2020 to October 22, 2020, with the jury reaching verdict in favor of the Bayeses and awarding substantial actual damages. See Docs. 294, 363. Before any of that occurred, however, the Court however performed a detailed analysis of the motion to disqualify (Doc. 111) and, as noted, denied the motion. Doc. 163. None of these subsequent events has had any bearing on the Court's analysis of the motion to disqualify, and Defendants have not suggested they should.

I. Background

Jaclyn Thompson is an associate at Bachus & Schanker, LLC. Attorneys from Bachus & Schanker are lead trial counsel for Plaintiffs in this case. Years before Thompson joined Bachus & Schanker, she began her legal career at Faegre Drinker Biddle & Reath LLP ("Faegre"). While at Faegre, Thompson represented Zimmer Holdings, Inc. in products liability actions involving Zimmer's Durom Cup hip implant. This case involves Biomet's Inc.’s M2a Magnum hip implant. When Thompson started at Faegre, Zimmer and Biomet were direct competitors. Eventually, Zimmer acquired Biomet and changed its name to Zimmer Biomet. Two years after Thompson left Faegre, Faegre became lead counsel for Biomet in this case. Biomet argues that Thompson's former representation of Zimmer Biomet disqualifies Bachus & Schanker from representing Plaintiffs in the present case.

A. Procedural history

In November 2018, this Court set the case for trial in May of 2020. Doc. 24. Some months later, the parties jointly requested a modification to the schedule, but represented that "[t]he requested extension will not require removing this case from the May 11, 2020 [trial] docket." Doc. 38 at ¶ 6. Because the schedule proposed by the parties did not allow the Court sufficient time to rule on dispositive and expert motions, the Court granted the extension and re-set the trial for September 14, 2020. Doc. 39. In July 2019, the parties again requested an amendment to the schedule, representing that "[t]he requested extension will not require removing this case from the September 14, 2020 [trial] docket." Doc. 46 at ¶ 7.

In March 2020, the parties jointly requested yet more time to complete discovery and file motions, but this time they disagreed about whether to continue the September 2020 trial date. Doc. 74. Plaintiffs stated that "[a]t this time, Plaintiffs are certain that they will be fully prepared for trial on September 14, 2020." Doc. 74 at p. 6. For a variety of reasons, Biomet sought to postpone the trial to early 2021. Id. In its Fourth Amended Case Management Order (i.e. the fifth CMO in the case), the Court granted the parties additional time to complete discovery but kept the September 14, 2020 trial date. Doc. 77.

Just two days after filing this motion to disqualify, Biomet filed a motion to continue the trial date, on the basis of concerns over COVID-19, its ability to complete trial preparation, and, ironically, its concern that granting the motion to disqualify lead counsel for the Bayes would work a hardship on Mr. and Mrs. Bayes and their trial lawyers. Doc. 127. Mr. and Mrs. Bayes opposed continuing the trial, stating: "Plaintiffs are fully prepared for the September trial." Doc. 134 at p. 2.

B. Durom Cup, M2a Magnum, and creation of MDLs

In the early 2000s, Biomet developed its M2a-Magnum metal-on-metal hip implant system. At the time, Zimmer Holdings, Inc. was one of Biomet's main competitors. Zimmer marketed and sold its own metal-on-metal hip implant system, the Durom Cup. Zimmer discontinued marketing and production of the Durom Cup in 2008. In June 2010, the Judicial Panel on Multidistrict Litigation established an MDL in New Jersey to address the increasing number of product-liability claims related to Zimmer's Durom Cup. MDL No. 2158 (D.N.J). Faegre was lead defense counsel for Zimmer in the Durom Cup MDL. Two years later, in October 2012, the Judicial Panel established a separate MDL for Biomet's M2a-Magnum in the Northern District of Indiana. MDL No. 2391 (N.D. Ind.). At that time, Faegre of course did not represent Zimmer's competitor Biomet in the M2a-Magnum MDL.

C. Thompson's employment at Faegre

Faegre hired Thompson as an entry-level associate in September 2014. Thompson worked for Faegre for a little over two years. During that time, Thompson worked primarily on Zimmer Durom Cup products-liability cases, billing approximately 2000 hours to Durom Cup matters. Thompson recalls doing typical entry-level work at Faegre, including legal research and drafting motions in limine. Doc. 132-1. Biomet offers a declaration from Faegre partner J. Joseph Tanner stating that Thompson, while working on Durom Cup matters, "prepared witness outlines for direct and cross examinations, prepared exhibit lists, attended trial team strategy meetings, analyzed expert witness opinions, prepared motions to exclude expert opinions, and prepared settlement analysis memorandum [sic]." Doc. 112-4. Tanner further states that Thompson received training on Zimmer's methods for "valuing [metal-on-metal] plaintiffs’ claims as part of a settlement structure" and then performed valuation assessments for approximately 15 plaintiffs as part of settlement negotiations. Thompson attended a single Durom Cup trial in 2016, where her principal task was to summarize the public events of the day for the trial team.

Biomet offers no evidence that Thompson participated in the development of (or was even privy to) Zimmer's overall strategy for defense of Durom Cup cases. Likewise, Biomet offers no evidence that Thompson ever participated in meetings or conference calls with Zimmer's in-house counsel or legal department. Tanner states that Thompson "prepared or contributed to memoranda" to Zimmer's in-house counsel, but Biomet has not submitted any such memoranda for the Court's in camera review. In fact, Biomet has not submitted any exemplars of Thompson's Faegre work-product for in camera review. In sum, Biomet offers no evidence that Thompson's work on Durom Cup matters was anything other than routine case-specific work of an entry-level associate on a substantial team of multiple lawyers.

D. Size of Zimmer and Biomet's litigation teams

To put the role that Thompson played in context, the Court provides a glimpse into the sheer number of lawyers representing Biomet in its hip-implant litigation. The battery of lawyers appearing for Biomet on this Court's docket reveals the substantial size of the trial team handling this case. See Docket generally, showing 18 attorneys presently representing Biomet, leaving aside multiple entries and withdrawals over the course of the case. The docket in the M2a-Magnum MDL Court also reveals a number of lawyers representing Biomet in its hip-implant litigation. See Biomet M2A Magnum Hip Implant Products Liability Litigation , No. 3:12-md-02391-RLM-MGG (N.D. Ind.), showing seven attorneys presently designated as Biomet's "liaison counsel," not including additional attorneys representing Biomet in the hundreds of individual MDL cases. The Durom Cup MDL docket sheet shows similarly large teams of lawyers representing Zimmer. See Miller v Zimmer Holdings, Inc. , No. 2:09-cv-04414-SDW-LDW (D.N.J.). Amidst this bevy of lawyers, the Court must assess the role that Thompson played and whether under applicable law including the Carey factors, she—as an entry-level associate fresh out of law school—had information requiring disqualification.

E. Zimmer's acquisition of Biomet

In June 2015, Zimmer Holdings, Inc. acquired Biomet's parent company. In...