Durst v. Zimmer Biomet Holdings, Inc. et al
| Gary P. Durst |
| Zimmer Biomet US, Inc., Zimmer Biomet Inc. and Zimmer Biomet Holdings, Inc. |
| 1:2019cv00790 |
| January 28, 2019 |
| US District Court for the Southern District of New York |
| Paul A Crotty |
| Personal Injury: Health Care/Pharmaceutical Personal Injury Product Liability |
| 28 U.S.C. § 1332 fd |
| Plaintiff |
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Filing 30
ORDER No.18. This Court sets forth the procedures governing the completion and production of the Plaintiff Preliminary Disclosure ("PPD"), the Plaintiff Pact Sheet ("PFS"), and the Defendant Fact Sheet ("DFS") in MDL Docket No. 2859 ("MDL No. 2859"). This Order shall apply to those actions previously transferred to this Court by the Judicial Panel on Multidistrict Litigation ("Panel") pursuant to its order of October 3, 2018, any tag-along actions transferred to this Court by the Panel, and any related actions that have been or will be originally filed in, transferred to, or removed to this Court and assigned thereto as part of MDL No. 2859. Subject to the Protective Order entered in MDL No. 2859 governing this MDL and applicable statutes and regulations, the Court hereby authorizes the Plaintiffs' Executive Committee ("PEC"), as well as any duly authorized agents or designees of the PEC, to review any and all PPDs, PFSs, DFSs, and responsive documents, as well as plaintiff-specific medical records, information, and documents to be used exclusively in connection with the preparation and discovery of these actions. Each individual plaintiff bound by this Order, shall serve a completed PPD pursuant to the following schedule as further set forth in this Order. Each individual plaintiff bound by this Order, shall serve a completed and signed PFS, executed authorizations in the form attached to the form PFS, and non-privileged documents responsive to requests in the PFS pursuant to the following schedule as further set forth in this Order. SO ORDERED. (Signed by Judge Paul A. Crotty on 3/27/19) Filed In Associated Cases: 1:18-md-02859-PAC et al.(yv) Modified on 3/27/2019 (yv).
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Filing 29
ORDER NO. 17. The Court has read and considered both parties' positions, submitted by letter to the Court via email, seeking clarification on the parameters of Science Day. Defendant's position of excluding Zimmer's documents, including the company's testing of the products, and individual plaintiffs' medical records, better align with the non-adversarial, educational goal of Science Day and is adopted. The Court prefers education, rather than advocacy, at this point. The parties are instructed to prepare their presentations and agenda for Science Day accordingly. So Ordered. (Signed by Judge Paul A. Crotty on 3/21/19) Filed In Associated Cases: 1:18-md-02859-PAC et al.(yv)
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| Filing 28 ELECTRONIC SUMMONS ISSUED as to Zimmer Biomet Holdings, Inc.. (sj) |
| Filing 27 ELECTRONIC SUMMONS ISSUED as to Zimmer Biomet US, Inc.. (sj) |
| Filing 26 ELECTRONIC SUMMONS ISSUED as to Zimmer Biomet Inc.. (sj) |
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Filing 25
ORDER N0. 16. The Court has carefully considered both parties positions regarding the proposed Plaintiff Fact Sheet ("PFS") and Defendant Fact Sheet ("DFS") and makes the following as further set forth in this Order. The parties are to confer and submit a revised proposed order regarding the PFS and DFS to the Court, within five days, consistent with this ruling. SO ORDERED. (Signed by Judge Paul A. Crotty on 3/19/19) Filed In Associated Cases: 1:18-md-02859-PAC et al.(yv)
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| Filing 24 REQUEST FOR ISSUANCE OF SUMMONS as to Zimmer Biomet, Inc., re: #19 Amended Complaint. Document filed by Gary P. Durst. (Anapol, Thomas) |
| Filing 23 REQUEST FOR ISSUANCE OF SUMMONS as to Zimmer Biomet US, Inc., re: #19 Amended Complaint. Document filed by Gary P. Durst. (Anapol, Thomas) |
| Filing 22 REQUEST FOR ISSUANCE OF SUMMONS as to Zimmer Biomet Holdings, Inc., re: #19 Amended Complaint. Document filed by Gary P. Durst. (Anapol, Thomas) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney Thomas R. Anapol to RE-FILE Document No. #21 Request for Issuance of Summons,. The filing is deficient for the following reason(s): 2 of the summons forms are blank; the form used for the summons is not the A.O. 440 summons form; summons requests can not be filed as attachments; each summons request must be filed separately. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (pne) |
| Filing 21 FILING ERROR - DEFICIENT SUMMONS REQUEST PDF ERROR - REQUEST FOR ISSUANCE OF SUMMONS as to Zimmer Biomet Holdings, Inc.; Zimmer Biomet, Inc.; Zimmer Biomet US, Inc., re: #19 Amended Complaint. Document filed by Gary P. Durst. (Attachments: #1 Summons, #2 Summons)(Anapol, Thomas) Modified on 3/19/2019 (pne). |
| Filing 20 CIVIL COVER SHEET filed. (Anapol, Thomas) |
| Filing 19 AMENDED COMPLAINT amending #1 Complaint, against Zimmer Biomet Holdings, Inc., Zimmer Biomet Inc., Zimmer Biomet US, Inc. with JURY DEMAND.Document filed by Gary P. Durst. Related document: #1 Complaint,.(Anapol, Thomas) |
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Filing 18
ORDER N0.15 in case 1:17-cv-02119-PAC; granting (73) Letter Motion to Compel in case 1:18-md-02859-PAC. The parties in this action seek clarification as to the effect of Order No. 10, the Joint Coordination Order, (18-md-2859, Dkt. 74), on related state court proceedings. (See PJ's Motion to Compel, Dkt. 73; Def. Response, Dkt. 77). To address their concerns, the Joint Coordination Order is amended to include the following language after Section A.2: This Order does not automatically stay state court proceedings or trial upon the completion of discovery; such is left to the judgement and discretion of the court in that Action. Nonetheless, the parties are encouraged to proceed in good faith and keep both courts apprised of the status of their respective cases. Coordinated Actions will coordinate trial dates with the MDL Proceedings to avoid scheduling conflicts. The Clerk of the Court is directed to close the motion at Dkt. 73. So Ordered. (Signed by Judge Paul A. Crotty on 3/8/19) Filed In Associated Cases: 1:18-md-02859-PAC et al. (yv)
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Filing 17
ORDER N0.14. The Court has arranged for the use of CourtCall, an independent conference call company, to enable counsel and any interested parties (including members of the press) to listen to future conferences in this multidistrict litigation. In order to use CourtCall to listen to a conference, a party must call CourtCall's reservation desk at (888) 882-6878 no later than 4:00 p.m. Eastern Time seven business days prior to each conference date. CourtCall will provide each participant with written confirmation of his or her registration and a number for the participant to call at the appointed time. Unless the Court orders otherwise on good cause shown by letter motion in advance of the conference, all CourtCall participants will be in "listen-only" mode. So Ordered. (Signed by Judge Paul A. Crotty on 3/8/19) Filed In Associated Cases: 1:18-md-02859-PAC et al.(yv)
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Filing 16
ORDER NO. 13. It is hereby ORDERED as follows: It is the intention of the Parties that all Materials be preserved in a manner that permits the Parties equal access to and analysis of the Materials, and that neither Party will alter the Materials in any way prior to reaching an agreement in writing regarding the testing or inspection of the Materials. Only if no such agreement can be reached will the Patties seek the Court's guidance as further set forth in this order. Nothing herein shall be construed to preclude a Party from challenging the method of preservation of any Materials. The Court DIRECTS the Clerk to file a copy of this order in MDL 2859, and it shall apply to all cases that are or become a part of MDL 2859 or are coordinated with MDL 2859. (Signed by Judge Paul A. Crotty on 3/7/2019) Filed In Associated Cases: 1:18-md-02859-PAC et al.(ks) Modified on 3/8/2019 (ks).
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Filing 15
ORDER NO. 12. Regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Paul A. Crotty on 2/14/2019) Filed In Associated Cases: 1:18-md-02859-PAC et al. (ks)
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Filing 14
ORDER NO. 11. The Plaintiffs and Zimmer, Inc., Zimmer US, Inc., and Zimmer Biomet Holdings, Inc. ("The Parties") hereby agree to the following protocol for production of electronically stored information ("ESI") and paper ("hardcopy") documents. Subject to protective orders in this Action, this protocol governs all production in the matter as a supplement to the Federal Rules of Civil Procedure, this Court's Local Rules, and any other applicable orders and rules. This protocol has the objective to facilitate the just, speedy, and inexpensive completion of discovery of ESI and hardcopy documents and to promote, whenever possible, the early resolution of disputes regarding the discovery of ESI without Court intervention. Nothing in this protocol shall limit a party's right to seek or object to discovery as set out in applicable rules or to object to the authenticity oradmissibility of any hardcopy document or ESI produced in accordance with this protocol and as further set forth in this order. (Signed by Judge Paul A. Crotty on 2/14/2019) Filed In Associated Cases: 1:18-md-02859-PAC et al.(ks)
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Filing 13
ORDER NO. 10. NOW, THEREFORE, IT IS ORDERED that the parties are to work together to coordinate discovery to the maximum extent feasible in order to avoid duplication of effort and discovery and to promote the efficient and speedy resolution of the MDL Proceeding and the Coordinated Actions and, to that end, the following procedures for discovery and pretrial proceedings shall be adopted and as further set forth in this order. (Signed by Judge Paul A. Crotty on 2/14/2019) Filed In Associated Cases: 1:18-md-02859-PAC et al.(ks)
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Filing 12
ORDER NO. 9. This Court sets forth instructions regarding the direct filing of Short-Form Complaints and responses thereto and a schedule and process for filing Master Pleadings in MDL Docket No. 2859 ("MDL No. 2859"). This order applies to those actions transferred to this Court by the Judicial Panel on Multidistrict Litigation ("Panel") pursuant to its order of October 3, 2018, any tag-along action transferred to this Court by the Panel, and any related actions that have been or will be originally filed in, transferred to, or removed to this Court and assigned thereto as part of MDL No. 2859 as further set forth in this Order. The Plaintiffs' Executive Committee ("PEC") must file the Master Complaint, in both 18-md-2859 and 18-mc-2859 and submit the Short Form Complaint within fourteen (14) days of the entry of this Order. All allegations pied, and all parties named therein are deemed to be named, in any previously filed Complaint filed nunc pro tune to the date each such Complaint was originally filed. Any Plaintiff who filed (or files) a Complaint in MDL No. 2859 or had (or has) a Complaint transferred to this MDL before the date of this order must file a Short Form Complaint in the Plaintiffs individual docket within 30 days of the date of filing of the Master Complaint. For purposes of statute of limitations and statute of repose, any such Plaintiff shall be deemed to have filed his or her Complaint as the date he or she filed his or her original Complaint and not the date of the Master Complaint or the date he or she filed his or her Short Form Complaint and as further set forth in this Order. Within thirty (30) days of the date of filing the Master Complaint, Defendants shall file a Master Answer to the Master Complaint or shall file, pursuant to the Federal Rules of Civil Procedure, a motion seeking dismissal, in whole or in part, of the Master Complaint. Defendants' response shall be filed in both 18-md-2859 and 18-mc-2859. If the Defendants file a Motion to Dismiss the Master Complaint and such Motion does not result in the dismissal of the Master Complaint in its entirety, the Defendants shall file a Master Answer within thirty (30) days of the date on which the Court issues a ruling as to Defendants' Motion to Dismiss, provided that the Court does not grant the PEC leave to amend the Master Complaint. If the Court grants the PEC leave to amend the Master Complaint, within thirty (30) days of such Order, the PEC shall file an Amended Master Complaint. Defendants shall file a Master Answer or Motion to Dismiss the Amended Master Complaint, in whole or in part, within thirty (30) days after the date of filing the Amended Master Complaint and as further set forth i in this Order. SO ORDERED. (Signed by Judge Paul A. Crotty on 2/7/19) Filed In Associated Cases: 1:18-md-02859-PAC et al.(yv)
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Filing 11
ORDER No. 8 granting in part and denying in part (56) Letter Motion to Compel in case 1:18-md-02859-PAC. The Zimmer Defendants are now ORDERED to, within three days, produce to Plaintiffs a list of all non-expert depositions taken in related state and federal proceedings which includes the following information: (1) the name and job title of the party deposed; (2) the subject matter of the deposition; (3) the relevant plaintiff/case name; and (4) Zimmer's view on whether the transcript is relevant and should be produced in this MDL and their reasoning. The parties are then to confer and agree on a list of deposition transcripts to be included in Zimmer's consolidated production. If the parties cannot agree on this list within 10 days of the issuance of this Order, they are each to submit a letter, not to exceed 3 pages double-spaced, explaining their position on the disputed depositions. The Zimmer Defendants are to include the original list of depositions provided to Plaintiffs along with their submission to the Court. The Clerk of the Court is further instructed to close the motion at Dkt. 55 on 18-MD-2859. SO ORDERED. (Signed by Judge Paul A. Crotty on 2/7/19) Filed In Associated Cases: 1:18-md-02859-PAC et al. (yv) Modified on 2/7/2019 (yv).
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Filing 10
ORDER NO. 7, Having considered the parties competing submissions the Court makes the following rulings: The Plaintiffs are entitled to name the Zimmer defendants of their choosing in the Master Complaint. Once filed, the Zimmer defendants may move to dismiss. The parties are to meet and confer and resubmit a finalized Order on Procedures for Direct Filing and Master Pleadings by February 1, 2019. The MDL Plaintiffs are entitled to use discovery already produced in related state court actions, to the extent that discovery is consistent with the discovery and protective orders that will be entered in this MDL. The parties are to meet and confer and resubmit a finalized Joint Coordination Order, or competing proposals, by February 1, 2019. This Court adopts Zimmer's proposed language regarding redacted or withheld information based on privilege accompanying the Defendant Fact Sheet ("DFS") in the Order Regarding Plaintiff Preliminary Disclosure, Plaintiff Fact Sheet, and Defendant Fact Sheet. Defendants shall include a section in the DFS to identify the privilege(s) invoked for any redactions and/or withholdings. The parties met and conferred further regarding this Order and are developing a process to submit the Plaintiff Fact Sheet and accompanying documents to ensure the security of the plaintiffs' personally identifiable information and protected health information. The parties shall resubmit a finalized Order Regarding Plaintiff Preliminary Disclosure, Plaintiff Fact Sheet, and Defendant Fact Sheet, including the Plaintiff Fact Sheet and Defendant Fact Sheet, by February 15, 2019. The parties agreed to withdraw their competing proposed Protective Order and ESI and Document Productions Order submitted on January 21, 2019. The parties shall resubmit the orders, or competing orders, by February 1, 2019. In the event the parties have competing orders, the parties shall submit letter briefs, not to exceed 8 double-spaced pages by 5:00 PM ET on February 8, 2019. If necessary, the Court will hold a hearing on the competing orders on a date convenient for the Court's calendar. The parties shall submit a Preservation Order, or competing orders, by February 4, 2019. If the parties have competing orders, the parties shall submit letter briefs, not to exceed 5 double-spaced pages by 5:00 PM ET on February 15, 2019. If necessary, the Court will hold a hearing on the competing orders on a date convenient for the Court's calendar. On November 22, 2018, Plaintiff Robert Harris and Dianna Harris filed a motion to remand. See Harris v. Zimmer et al., Case No. 18-cv-2584 (N.D. Ohio). On November 30, 2018, the Zimmer Defendants filed a motion to stay their deadline to respond to this motion pending completion of transfer to this MDL. Plaintiffs' motion to remand filed in the United States District Court for the Northern District of Ohio is the operative motion. The Court will conduct the next Status Conference on March 27, 2019, at 10:00 a.m. in Courtroom 14-C of the Daniel Patrick Moynihan United State Courthouse, 500 Pearl Street, New York, New York 10007. Counsel should check in with the Courtroom Deputy at least fifteen minutes in advance. Counsel should arrive at the Courthouse with sufficient time to go through security. Seats in the Courtroom may not be reserved. In advance of each future Status Conference, counsel for the Zimmer Defendants and Plaintiffs' Executive Committee shall meet and confer regarding the agenda for the Conference. No later than five (5) days prior to each Status Conference, counsel shall file a joint letter, not to exceed five (5) single-spaced pages and to be filed in both 18-MD-2859 and 18-MC-2859, setting forth the parties' tentative agenda and the parties' proposals on those issues (and, to the extent applicable, submitting any proposed orders-joint or otherwise-in accordance with Section VI below). SO ORDERED. (Brief due by 2/15/2019., Status Conference set for 3/27/2019 at 10:00 AM in Courtroom 14C, 500 Pearl Street, New York, NY 10007 before Judge Paul A. Crotty.) (Signed by Judge Paul A. Crotty on 2/7/19) Filed In Associated Cases: 1:18-md-02859-PAC et al.(yv)
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Filing 9
ORDER NO. 6 PLAINTIFFS' EXECUTIVE COMMITTEE AND PLAINTIFFS' STEERING COMMITTEE AUTHORITY, DUTIES AND RESPONSIBILITIES: In Order No. 2, the Court appointed the Plaintiffs' Executive Committee ("PEC") and Plaintiffs' Steering Committee ("PSC"). This Order defines the authority, duties, and responsibilities of the members of the PEC and PSC. Specific guidelines and rules for staffing, fees, expenses, and billing records is governed by Proposed Order No. 5 regarding Management of Timekeeping, Cost Reimbursement, and Related Common Benefit Issues. Nothing in this Order shall be interpreted to affect any proceedings other than those involving the authorities, duties, responsibilities, guidelines, and rules of and for plaintiffs' counsel, as discussed herein, as further set forth in this Order. (Signed by Judge Paul A. Crotty on 1/30/2019) Filed In Associated Cases: 1:18-md-02859-PAC et al. (mml)
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Filing 8
ORDER NO. 5 MANAGEMENT OF TIMEKEEPING, COST REIMBURSEMENT AND RELATEDCOMMON BENEFIT ISSUES: The Court hereby adopts the following guidelines for (a) tasks performed for the common benefit of all plaintiffs ("Common Benefit Work") and (b) time expended, or expenses incurred, in performing Common Benefit Work ("Common Benefit Expenses"), which shall be compensated from the Common Benefit Fund ONLY in accordance with the rules set forth in this Order. (Signed by Judge Paul A. Crotty on 1/30/2019) Filed In Associated Cases: 1:18-md-02859-PAC et al. (mml)
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Filing 7
ORDER NO. 4 WEBSITE ORDER: Counsel need to ensure that the Website is compatible with the Electronic Case Filing (ECF) system in place in this court. The Website should contain appropriate linkages to information available through the ECF system. Counsel may recommend, by motion, that a portion of the Website be accessible only to counsel for Plaintiffs, counsel for Defendants, or both. Any limitations, however, should be restricted to (1) matters that represent the work product of attorneys for Plaintiffs or Defendants and are not otherwise available to other persons, and (2) matters that are confidential under a protective order issued by this Court. The Website should be established so that it is compatible with most communications software, with a view toward making it publicly available. Counsel are expected to use computers to prepare documents sent to the clerk or to chambers and to provide electronic versions of all documents, as further set forth in this Order. (Signed by Judge Paul A. Crotty on 1/30/2019) Filed In Associated Cases: 1:18-md-02859-PAC et al. (mml)
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Filing 6
ORDER NO. 3 MASTER SCHEDULING AND DISCOVERY ORDER: Amended Pleadings due by 6/28/2019. Joinder of Parties due by 6/28/2019. Fact Discovery due by 11/22/2019. Discovery due by 8/16/2019. Deadline for Zimmer Defendants to produce all discovery previously produced relating to the M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kinectiv Technology and Versys Femoral Head as one certified MDL production: 4/29/2019. This off-the-record background tutorial regarding the products and science relevant to this litigation will take place following the next Case Management Conference on Wednesday, March 27, 2019, as further set forth in this Order. (Signed by Judge Paul A. Crotty on 1/30/2019) Filed In Associated Cases: 1:18-md-02859-PAC et al. (mml)
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| Filing 5 MDL TRANSFERRED IN from the United States District Court - District of Pennsylvania Eastern; Case Number: 2:19-cv-00021. Original file certified copy of transfer order and docket entries received. (sjo) |
| CASE ACCEPTED AS RELATED. Create association to 1:18-md-02859-PAC. (sjo) |
| CONSOLIDATED MDL CASE: Create association to 1:18-md-02859-PAC. (sjo) |
| Case Designated ECF. (sjo) |
| NOTE TO OUT OF STATE ATTORNEYS: Please visit the Court's website at http://www.nysd.uscourts.gov for information regarding admission to the S.D.N.Y. Bar and the CM/ECF Rules & Filing Instructions. (sjo) |
| Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #http://nysd.uscourts.gov/forms.php. (sjo) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE - TRANSFER CASE: This case is assigned to: Judge Paul A. Crotty. Please download and review the Individual Practices of the assigned District Judge, located at #http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #http://nysd.uscourts.gov/ecf_filing.php. (sjo) |
| Original record transferred to the Southern District of New York via interdistrict transfer system. (md) [Transferred from Pennsylvania Eastern on 1/28/2019.] |
| Filing 4 CERTIFIED COPY OF CONDITIONAL TRANSFER ORDER THAT PURSUANT TO RULE 7.1 OF THE RULES OF PROCEDURE OF THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, THE ACTION(S) ON THE ATTACHED SCHEDULE ARE TRANSFERRED UNDER 28 U.S.C. 1407 TO THE SOUTHERN DISTRICT OF NEW YORK FOR THE REASONS STATED IN THE ORDER OF 10/3/18 AND WITH THE CONSENT OF THAT COURT, ASSIGNED TO HONORABLE PAUL A. CROTTY. (rf, ) [Transferred from Pennsylvania Eastern on 1/28/2019.] |
| Filing 3 Copy RE: Notice of Potential Tag-along Action. Filed Before the JPML regarding IN RE: Zimmer M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kinectiv Technology and Versys Femoral Head Products Liability Litigation. (kp, ) [Transferred from Pennsylvania Eastern on 1/28/2019.] |
| Filing 2 12(b) Procedural Order (CJL) [Transferred from Pennsylvania Eastern on 1/28/2019.] |
| Filing 1 COMPLAINT against ZIMMER BIOMET HOLDINGS, INC., ZIMMER BIOMET US, INC., ZIMMER BIOMET, INC. ( Filing fee $ 400 receipt number PPE190341.), filed by GARY P. DURST., JURY DEMAND (Attachments: #1 CASE FORMS)(jl, ) [Transferred from Pennsylvania Eastern on 1/28/2019.] |
| 3 Summons Issued as to ZIMMER BIOMET HOLDINGS, INC., ZIMMER BIOMET US, INC., ZIMMER BIOMET, INC.. Forwarded To: THOMAS ANAPOL on 1/4/19 (jl, ) [Transferred from Pennsylvania Eastern on 1/28/2019.] |
| DEMAND for Trial by Jury by GARY P. DURST. (jl, ) [Transferred from Pennsylvania Eastern on 1/28/2019.] |
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