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Northern District of Indiana - United States District Court

MDL 2391

In Re: Biomet M2A Magnum Hip Implant Products Liability Litigation

Master Docket Number:
Presiding Judge:
Robert L. Miller, Jr.
(574) 246-8080
The cases in this litigation primarily involve alleged defects in Biomet’s M2a Magnum system  
of hip implant products. Plaintiffs’ claims focus upon the metal-on-metal design of the M2a
Magnum system and the alleged propensity of the M2a Magnum devices to generate high
levels of metal ions, cause metallosis in the surrounding tissue, and/or fail early.
Plaintiffs' Lead Co-Counsel:
Thomas R. Anapol
Anapol Schwantz
1710 Spruce Street
Philadelphia, PA 19103
(215) 735-1130
Fax: (215) 875-7707

W. Mark Lanier
The Lanier Law Firm, PC
6810 FM 1960 West
Houston, TX 77069
(713) 659-5200
Fax: (713) 659-2204
Plaintiffs' Liaison Counsel:
Robert T. Dassow and Frederick R. Hovde
Hovde Dassow & Deets, LLC
201 W. 103rd Street, Suite 500
Indianapolis, IN 46290
(317) 818-3100
Fax: (317) 818-3111
Defendants' Lead Counsel:
John D Winter
Patterson Belknap Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036-6710
(212) 336-2836
Fax: (212) 336-2222
Defendants' Liaison Counsel:
John D. LaDue and Erin Linder Hanig
LaDue Curran & Kuehn LLC
200 First Bank Bldg
205 W Jefferson Blvd
South Bend, IN 46601
(574) 968-0760
Fax: (574) 968-0761

Jenya Moshkovich
Patterson Belknap Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036-6710
(212) 336-2881
Fax: (212) 336-2222

Orders Pertaining to MDL 2391
10/2/2012Transfer OrderInitial Transfer Order from Judicial Panel on Multidistrict Litigation.
10/12/2012Pretrial Order 1Case Management Conference set for 11/16/12 at 1:00 pm (EST) at the Robert A. Grant Federal Building and Courthouse, South Bend, Indiana. Written submissions by Interim Liaison Counsel due 11/9/12; Applications for plaintiffs' steering committee due 11/13/12, with any objections to be filed by 11/20/12.
11/16/2012Memo of First Case Mgmt ConfPro Hac Vice requirements modified for admission in MDL 2391 and member cases. Deadline for answers in member cases transferred prior to November 16, 2012 extended to January 14, 2013. Telephonic case management conference set for January 7, 2013 at 1 pm (EST).
11/16/2012Plaintiffs' Proposed Counsel Organizational StructureProposal and applications for plaintiffs' permanent Lead and Liaison Counsel, Executive Committee,and Steering Committee
11/16/2012MDL Application for Pro Hac Vice Admission & CM/ECF RegistrationPTO No. 1 amended to require attorneys to complete an MDL Application for Pro Hac Vice Admission and CM/ECF Registration form, if they are appointed as part of the organizational structure in 3:12md2391 or are seeking to make a post-transfer appearance in a member case. The form is also available on-line at
12/5/2012Organizational Structure Order Identifies the attorneys appointed as Plaintiffs' Lead Counsel, Executive Committee, Steering Committee, and Liaison Counsel and their respective duties and responsibilities, and designates Defendants' Lead and Liaison Counsel. All appointments shall be for a period of one year, at the conclusion of which appointees must seek reappointment. Requested modifications will be addressed at the telephonic case management conference on January 7, 2013 at 1 pm (EST).
12/18/2012Order Concerning Second Case Mgmt ConfLead counsel to confer and submit a proposed agenda and case management order by Jan 4, 2013.
1/9/2013Memo of Jan 7, 2013 Case Mgmt ConfReview of proposed pretrial orders and summary of discussion. Parties to confer and submit proposed agreed orders covering discovery and production of electronically stored information, the protection of confidential and privileged information, and case management deadlines before the next conference. Case Management Conference scheduled for 2/4/13 at 1:00 p.m. (E.S.T.).
2/8/2013Memo of Feb 4, 2013 Case Mgmt ConfReview of proposed revisions to pretrial orders and summary of discussion. Proposed modifications to Plaintiff Fact Sheet due 2/14/13. Court will revise proposed preservation order and circulate for consideration at next conference. Parties to confer and submit proposed order regarding all discovery related dates and deadlines by 3/18/13. Next case management conference scheduled for 3/18/13 at 1:00 p.m. (E.D.T.).
2/11/2013Gen Order 2013-4 Re: Assignment of Related CasesGeneral Order assigning all products liability cases filed in the Northern District of Indiana relating to the Biomet M2a Magnum Hip Implant to Hon. Robert Miller, Jr., and transferring those cases to 3:12-md-2391 for consolidated pretrial proceedings.
2/15/2013Case Management OrderProcedures relating to transfer and coordination, service of complaints, filing directly in the Northern District of Indiana, Electronic Case Filings (ECF), electronically stored information, discovery, privileged and confidential information, severance, motions to remand, and communications with the court and among the parties. The following orders and forms are attached to, and incorporated in, the Case Management Order: (1) the Seventh Circuit's Standing Order Relating to the Discovery of Electronically Stored Information (Exh. A); (2) Stipulated Order Regarding Production Format of Electronically Stored Information (Exh. B); (3) Stipulated Protective Order of Confidentiality and Endorsement of Protective Order (Exh. C); (4) Limited Authorization to Disclose Health Information (Exh. E); and (5) Defendants Fact Sheet (Exh. F). The court is reviewing proposed modifications to the Plaintiff Fact Sheet (PFS), and will add the approved PFS to the Case Management Order as Exhibit D at a later date.
3/7/2013Explant Preservation OrderDirectives relating to the preservation of Explanted M2a Devices.
3/8/2013Biomet's Retrieval Analysis ProtocolExhibit A to the Explant Preservation Order [Doc. No. 279].
3/20/2013Memo of Mar 18, 2013 Case Mgmt ConfReview of proposed protocols for production of electronically stored information, proposed modifications to the Plaintiff Fact Sheet, pending motions, and procedural issues regarding venue in cases filed directly in the ND Ind, severance, and case duplication. The Court REFERRED the parties to Secs. III and XII of the CMO [242] regarding Venue Statements and severance of cases involving multiple unrelated plaintiffs; DIRECTED the parties to file written submissions regarding proposed protocols for production of electronically stored information by April 1, 2013, and to supplement their briefs on the pending motions to remand and to dismiss by April 22, 2013; GRANTED the defendants' oral motion to withdraw their pending motions to transfer; DIRECTED defendants' liaison counsel to prepare and submit an agreed revised Plaintiff Fact Sheet for the court's approval; and SCHEDULED the next case management conference for 4/22/13 at 9:30 a.m. (E.D.T.).
3/25/2013Limited Authorization to Disclose Health InformationExhibit E to the 2/15/13 Case Management Order [Doc. No. 242], incorporated by reference in the Plaintiff Fact Sheet [Doc. No. 320].
3/25/2013Plaintiff Fact SheetExhibit D to the 2/15/13 Case Management Order [Doc. No. 242]
3/27/2013Supplemental PFS OrderSchedule for serving Plaintiff Fact Sheets, Responsive Documents, and Limited Authorizations.
4/18/2013Order Re: Discovery of ESIDirectives relating to the discovery of Electronically Stored Information.
4/22/2013Severance OrderOrder severing the unrelated plaintiffs in 3:12cv448, 3:12cv643, 3:12cv647 and 3:12cv719, pursuant to Sec. XII of the Case Mgmt Order [Doc. No. 242].
4/25/2013Memo of Apr 22, 2013 Case Mgmt ConfFollowing discussion, the court took the parties' positions regarding Rule 30(b)(6)depositions under advisement; deemed the answers filed in 3:12cv448, 3:12cv643, 3:12cv647, and 3:12cv719 applicable to any new case filed in accordance with the 4/22/13 severance order [Doc. No.400]; modified the MDL pro hac vice procedures; and set the next case management conference, motions hearing, and tutorial on scientific and technical issues for 6/17/13 at 9:30 a.m. (E.D.T.).
5/3/2013Rule 30(b)(6) DepositionsAbsent agreement of the parties, corporate depositions under Fed. R. Civ. P. 30(b)(6)will be taken in South Bend and/or Fort Wayne, Indiana.
5/14/2013Stipulation of Dismissal of Improper DefendantsAll "John Doe" defendants and Biomet corporate entities other than Biomet, Inc., Biomet Orthopedics, LLC, Biomet Manufacturing Corporation, and Biomet U.S. Reconstruction, LLC are dismissed without prejudice from each of the PSC member cases, by stipulation of the parties [Doc.No. 444].
6/24/2013Memo of June 17, 2013 Case Mgmt ConfFollowing discussion and oral argument, the court: took the motion to dismiss in 3:13cv73 under advisement; stayed briefing on all motions to strike affirmative defenses; and directed the parties to meet and confer regarding continuing issues with jurisdiction and venue, the use of a form compliant, dismissal of duplicate cases, and the need for additional or modified procedures in the M2a Taper cases. A telephonic status conference was scheduled for 7/29/13 at 9:00 a.m. (E.D.T.), and the next case management conference was scheduled for 9/23/13 at 9:30 a.m. (E.D.T.).
7/16/2013Common Benefit Time and Expense Reporting ProtocolOrder establishing a time and expense reporting protocol for common benefit work.
7/30/2013Memo of July 29, 2013 Telephonic Status ConferenceFollowing a brief discussion on the status of discovery and other administrative issues, the court directed the parties to brief their positions on plaintiffs' request for production of documents used to train the coding system by 8/5/13; tabled discussion on use of a form complaint, and deferred discussion of the deadlines for dispositive motions and selection of bellwether cases until the next case management conference on September 23, 2013 at 9:30 a.m. (E.D.T.).
8/21/2013Opinion and Order Re: Preemption Under 21 U.S.C. 360k(a)Order denying defendants' motion to dismiss in 3:13cv73 on preemption grounds under 21 U.S.C. 360k(a).
8/21/2013Memo and Order Re: Disclosure of Predictive Coding DocumentsOrder denying plaintiffs' request for the production of documents used to train the predictive coding algorithm.
9/9/2013Case Mgmt Order 2: Mgmt of Attorney-Client Privilege & Work Product ProtectionOrder modifying the privilege log protocol in Case Mgmt Order No. 1 [Doc. No. 242] and the Stipulated Order Relating to the Discovery of Electronically Stored Information [Exh. A to Doc. No. 242] and adopting an Alternative Privilege Logging Protocol.
9/24/2013Memo of Sep 23, 2013 Case Mgmt ConfIssues discussed included the status of discovery, selection of bellwether cases, and pending and future dispositive motions. Defense counsel advised the court that they will submit proposed forms of order regarding the pending motions to dismiss for failure to file a PFS, dismissing without prejudice and giving the parties 90 days to cure any deficiency before the actions are dismissed with prejudice. The court will issue an order prior to the next conference regarding the bellwether selection process and plaintiffs' request to appoint a special master for discovery. A telephonic case management conference was scheduled for November 18, 2013 at 9:00 a.m. (E.S.T.).
11/13/2013Deadlines Relating to Appointment/Reappointment to Plfts' Organizational StructureOrder regarding applications for appointment or reappointment to Plaintiffs' Organizational Structure. Current appointments extended to December 31, 2013. Applications due November 25, 2013, with any objections to be filed by December 6, 2013.
11/19/2013Memo of Nov 18, 2013 Case Mgmt ConfTopics addressed: status of discovery; proposed scheduling orders [935 and 951]; plaintiffs' requests for special master [936] and production of unredacted DFS; defendants' proposal regarding disposition of statute of limitations cases [952] and request to suspend or dismiss non-revision cases; and reappointment of PSC [987]. Matters taken under advisement; written orders to follow. Next case management conference scheduled for Monday, January 6, 2014, at 9:30 a.m. (E.S.T.).
12/3/2013Amended Application/Objection Deadlines for PSCAt plaintiffs' request, deadline for applications for appointment/reappointment to PSC extended to Dec 3, 2013, with any objections to be filed by Dec 13, 2013. [Modifying 987].
12/10/2013Memo Re: Appt of Spec Master and SchedulingPSC's request for appointment of special master for discovery denied. Court adopts joint recommendation re: non-revision cases, as modified. Parties to prepare and submit an agreed list of non-revision cases to be placed on a non-revision track and stayed pending further order. Scheduling orders re: non-revision cases, amendments to the pleadings, discovery, dispositive motions, and bellwether trials to follow.
12/10/2013Scheduling OrderOrder setting deadlines for amendments to the pleadings, discovery, dispositive motions, and bellwether trials.
12/11/2013Non-Revision Track OrderOrder regarding proceedings in non-revision cases. PSC and defendants to confer and submit list of all cases to be place on non-revision track by January 22, 2014.
12/30/20132014 Appointments to Plaintiffs' Organization StructureAmended Order appointing/reappointing Plaintiffs' Steering Committee, Executive Committee, Lead, and Liaison Counsel effective Jan 1, 2014-Dec 31, 2014.
1/7/2014Preliminary Disclosure Form and OrderPreliminary Disclosure Form (Exhibit A) to be completed by plaintiffs and served on the defendants by February 7, 2014 in all pending cases. For all cased filed after the date of this order, the Preliminary Disclosure Form must be completed and served 30 days from the date the case is transferred into the MDL, or, if directly filed, 30 days from the date the case is filed in the Northern District of Indiana. [Doc. No. 1177].
1/31/2014Joint Stipulation re: Non-Revision CasesJoint Stipulation to Stay Proceedings Pending Revision Surgery [Doc. No. 1313]
1/31/2014Settlement AgreementSettlement Agreement Between Biomet, Inc. and Plaintiffs' Executive Committee [Doc. No. 1317-1].
2/3/2014Order Establishing Common Benefit FundsCase Mgmt Order Establishing Common Benefit Fee and Expense Funds [Doc. No. 1317-2].
2/3/2014Common Benefit Settlement AgreementBiomet Common Benefit Settlement Agreement [Doc. No. 1317-3].
2/3/2014Order Vacating Scheduling Order and Feb 28, 2014 Case Mgmt ConfIn light of tendered Settlement Agreement [Doc. No. 1317-1], CMO Establising Common Benefit Funds [Doc. No. 1317-2], and Biomet's Common Benefit Settlement Agreement [Doc. No. 1317-3], the Dec 10, 2013 scheduling order [Doc. No. 1118] and Feb 28, 2014 Case Mgmt Conference are VACATED. A telephonic status conference is set for April 21, 2014 at 10:00 a.m. (E.D.T.), with joint status report due April 17, 2014.
2/3/2014Order Staying Non-Revision CasesPer the parties' joint stipulation [Doc. No. 1313], all case specific proceedings in non-revision cases designated in Exh. A [Doc. No. 1313-1] are STAYED.
2/5/2014Schedule of Settlement DeadlinesExhibit A to the Settlement Agreement [Doc. No. 1317-1].
2/14/2014Order Staying Responsive Pleadings DeadlinesBy agreement of the parties, all case specific responsive pleadings deadlines are STAYED until further notice. [Doc. No. 1418]
4/2/2014Categorization of Cases Eligible for SettlementOrder establishing secure website for plaintiffs' counsel to utilize in categorizing cases eligible for settlement pursuant to Sec. 2(d)-(f) of the Master Settlement Agreement.[Doc. No. 1738].
4/14/2014Qualified Protective OrderQualified Protective Order relating to plaintiffs' selection of Lien Resolution Administrator (Garretson Resoluton Group, Inc.) and its authority to act. [Doc. No. 1936]
8/11/2014Order Re: Remote Attendance at Aug 14 Tele Status ConferenceCall in information for August 14, 2014 telephonic status conference.
8/14/2014August 14, 2014 Telephonic Status ConfTELEPHONIC STATUS CONFERENCE held on August 14, 2014 before Judge Robert L Miller Jr. Plaintiffs appeared by attorneys Thomas Anapol, Mark Lanier, and Robert Dassow. Defendants appeared by attorney John Winter. Parties moving forward pursuant to the settlement agreement. Status reports due on September 8, 2014 and October 14, 2014. Next status conference scheduled in South Bend for October 20, 2014 at 9:30 AM (E.D.T.), with an executive session, if necessary,at 9:00 AM (E.D.T.).
9/12/2014Joint Stipulation Re: Non-Revision CasesJoint Stipulation to Dismiss Non-Revision Cases [Doc. No. 2742]
9/18/2014Addendum to Settlement AgreementAddendum [Doc. No. 2756-1]amending Section 6 (Escrow)of the Settlement Agreement [Doc. No. 1317-1.
9/19/2014Order Re: Joint Stip to Dismiss Non-Revision CasesOrder granting, in part, the parties' Joint Stipulation to Dismiss Non-Revision Cases [Doc. No. 2758].
10/17/2014Remote Attendance at Oct 20, 2014 Status ConferenceCall in information for October 20, 2014 status conference.
10/20/2014Memo of Oct 20, 2014 Status ConferenceParties provided updated status report on Groups 1 and 2. Resolution of cases filed by April 15, 2014, but not included in Groups 1 or 2, will be addressed after Group 2 mediation is complete. Applications for appointment/reappointment to Plaintiffs' organizational structure to be filed by Nov 18, 2014, with any objections to be filed by Nov 28. Post settlement procedures for all remaining cases will be a topic of discussion at the next telephonic status conference on Dec 23, 2014 at 1:00 p.m. (E.S.T.). Joint status report to be filed by Dec 8.
11/18/2014Mediation Resolution Deadline OrderORDER extending mediation resolution deadline in Paragraph 3(c) of the Master Settlement Agreement to January 30, 2015. [Doc. No. 2792].
12/15/2014Dec 23 TSC Time ChangeThe telephonic status conference on December 23, 2014 will begin at 11:00 a.m. This a time change only.
12/16/2014Remote Attendance at Dec 23, 2014 Status ConferenceCall in information for December 23, 2014 telephonic status conference.