Madison - St. Clair Record

Wednesday, February 19, 2020

Zimmer Biomet will proceed to trial over allegedly defective cervical cage with no defense, per judge's sanction

State Court

By The Madison County Record | Dec 2, 2019

Rudolf and Cates

BELLEVILLE – Cervical cage maker Zimmer Biomet sought a secret advantage over other defendants in a surgery suit, but the deal backfired so badly that Zimmer faces trial alone with no defense. 

Circuit Judge Heinz Rudolf struck Zimmer’s pleadings, defenses, counter claims and cross claims on Nov. 5, as a sanction for discovery violations. 

Rudolf reserved a right to instruct jurors about Zimmer’s malfeasance. 

The other defendants headed for the exit by swiftly achieving settlement. 

Zimmer has moved for reconsideration, and Rudolf has set a hearing Dec. 12. 

He has set trial for plaintiffs A.J. Mitchell and Lillie Mitchell in February. 

David Cates of Swansea filed the suit last year against St. Elizabeth’s Hospital, its medical group, surgeon Serge Rasskazoff, and Zimmer. 

Cates claimed A.J. Mitchell suffered injuries in surgery when a cervical cage broke. 

He served interrogatories and production requests on Zimmer. 

So did the Donovan Rose Nester firm of Belleville, representing the hospital. 

Counsel for Zimmer, from the Faegre Baker firm in Minneapolis, resisted discovery on both fronts. 

Faegre Baker withdrew in February, and Zimmer retained the Quarles and Brady firm of Milwaukee. 

Laura Beasley of Belleville, Zimmer’s local counsel, remained on the case. 

Zimmer yielded some documents but not enough for Cates, who moved to serve excess interrogatories. 

Prior to a hearing on the motion, Cates and Zimmer compromised. 

They advised Rudolf of an agreement on March 14, and he granted the motion. 

On the same date, Beasley and Chad Mooney of the Cates Mahoney firm presented a protective order to Associate Judge Kevin Hoerner. 

No one had filed a motion to approve it. 

Instead, Mooney attached a statement with no title. 

It stated he was about to receive confidential information; that he wouldn’t use the information for any purpose but this litigation; that he wouldn’t reveal it to anyone except in accordance with the order and that he would return it at the end of the litigation. 

On the bottom line of the order, Rudolf’s name appeared in type. 

Hoerner blotted it out and signed his own name. 

The other defendants didn’t receive copies of the order.  

In April, Zimmer produced about 13,000 pages of documents to the Mitchells. 

In August, Cates set a Sept. 4 deposition for Zimmer’s corporate representative. 

On Sept. 3, Zimmer produced contracts with sales agents requiring an internal reporting process if a product should break in surgery. 

Cates asked Zimmer for the report on A.J. Mitchell, and Zimmer produced a report that included a transcript of sales representatives in the surgery room. 

At the deposition on Sept. 4, the other defendants found out about the protective order Hoerner signed. 

They moved for sanctions on general principles, and Cates moved for specific sanctions over the delay in producing the report with the transcript.  

Rudolf held a hearing on Oct. 28, and chose drastic action on Nov. 5. 

“This court has come to the point that less onerous sanctions would be counter productive,” he wrote. 

Rudolf found Zimmer’s obvious advantage in developing testimony caused significant prejudice to plaintiffs and other defendants. 

He rejected Zimmer’s claim that it didn’t produce documents to other defendants because they didn’t sign the protective order. 

Zimmer never made that request, he wrote. 

He found Zimmer had a duty to notify other defendants even if it produced documents only to plaintiffs. 

He wrote that his analysis involved determining whether responsibility fell on Zimmer, their changed counsel, or Beasley, “who appears to this court to have not been kept in the loop by Zimmer.”  

He laid most of the responsibility on Zimmer, finding other defendants couldn’t effectively examine witnesses due to its failure. 

“Zimmer has never filed a motion for protective order and a hearing was not conducted before the court with all counsel present,” Rudolf wrote. 

He quoted an affidavit of hospital counsel Jason Gourley, stating he did not participate in any discussion regarding the order. 

He struck Zimmer’s pleadings and its objections to discovery requests. 

He barred it from alleging negligence against the hospital or Rasskazoff. 

He separately denied a motion that would have allowed Zimmer to file cross claims against the hospital. 

He wrote that even if he didn’t grant sanctions, Zimmer didn’t plead a sufficient basis to warrant cross claims. 

Beasley moved for reconsideration of the sanctions order on Nov. 18, pleading that Zimmer never disobeyed any order. 

“When considered as a whole, all the parties share some of the blame when it comes to the protective order documents,” Beasley wrote. 

She wrote that on Feb. 13, Zimmer counsel Catherine Pollard told Cates she would circulate terms of the order “to the larger group.” 

She wrote that Cates replied, “We don’t need the consent of the other parties.” 

She admitted in hindsight that Zimmer should have served the order on the other defendants the day it was entered. She claimed the delay in producing the adverse event report arose because Zimmer looked in its database and not the database of a company it acquired. 

“There is no evidence that Zimmer was attempting to hide the report,” Beasley wrote. 

On the same day, Cates announced a settlement with St. Elizabeth’s, Rasskazoff, and the medical group. 

He moved for a finding of good faith, along with Michael Nester for the hospital, James Neville of Belleville for the medical group, and Nathan Wetzel of Springfield for Rasskazoff.

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