Products Liability Law Daily Zimmer’s Durom Cup case receives new trial for damages, not liability
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Monday, April 30, 2018

Zimmer’s Durom Cup case receives new trial for damages, not liability

By Victoria Moran, J.D., M.H.A.

In an action arising out of injuries sustained by a hip implant patient, a California appeals court granted Zimmer, Inc.’s motion for a new trial on the issue of damages, but not liability. Misconduct by the patient’s attorney in violating a trial court order on a motion in limine had no bearing on liability, and Zimmer suffered no prejudice with respect to liability. In an unpublished opinion, the appeals court concluded that the case should be remanded for a new trial on damages related to the design defect of the Durom Cup, a hip implant component manufactured by Zimmer (Kline v. Zimmer, Inc., April 27, 2018, Hall, J.).

A patient underwent a total hip replacement surgery in May 2007, during which a Durom Acetabular Component (Durom Cup) was implanted. After the patient suffered complications, the Durom Cup was removed and replaced in September 2008. The patient filed suit in 2010 based on claims that the Durom Cup was defective, that Zimmer failed to perform adequate testing prior to sale in the U.S., and that the company failed to provide adequate warnings. The jury found in favor of the patient, awarding him $153,317 in economic damages and $9 million in noneconomic damages ($2.4 million for past noneconomic loss and $6.6 million for future noneconomic loss) [see Products Liability Law Daily’sAugust 4, 2015 analysis].

After the verdict, the trial court denied Zimmer’s motion for a judgment notwithstanding the verdict, finding sufficient evidence to support the verdict. However, the trial court granted Zimmer’s motion for a new trial on two grounds: (1) irregularity in the proceedings resulting from misconduct by the patient’s counsel (the attorney made several misstatements, introduced improper evidence, misrepresented the amount of medical expenses, and made other false representations to the jury); and (2) excessive damages. The court granted a retrial unless the patient would accept a reduced award, which he declined. The patient appealed and Zimmer cross-appealed.

Judgment notwithstanding the verdict. The appeals court found that compelling evidence existed to support the jurors’ finding that the design of the Durom Cup was defective. The evidence showed that the coating on the cup did not allow the necessary bone growth to permanently stabilize the cup. In addition, it was reasonable to conclude that Zimmer failed to adequately test the American coating (versus the coating in the European version of the Durom Cup), which misled consumers to believe that the European and American coatings were the same. The patient also presented sufficient evidence of the standard of care and that a manufacturer should test the coating of a proposed implant, which Zimmer failed to do. While Zimmer received FDA clearance to sell the Durom Cup through the FDA’s 510(k) process, it did not test the coating in the U.S. with its intended users and the 510(k) process does not preempt state court tort actions.

New trial. The appeals court found that the trial court adequately specified its reasons for finding that the damages were excessive and was well within its discretion in so concluding.

The trial court also had concluded that there were irregularities in the proceedings because of the misconduct of the patient’s attorney, but there was no prejudice bearing on the jury’s finding of liability. The appeals court determined that the retrial should be limited to damages because the only prejudice was an inflated damage award. In addition, Zimmer failed to show that a new trial on liability was required. While the patient’s attorney did violate the order on Zimmer’s motion in limine, Zimmer’s prejudice was limited to damages only.

The case is No. B269317.

Attorneys: Michael B. Gurien (Waters Kraus & Paul and Waters & Kraus, LLP) for Gary Kline. Paul D. Fogel (Reed Smith LLP) and Tarifa B. Laddon (The Law Firm of Faegre Baker Daniels) for Zimmer, Inc.

Companies: Zimmer, Inc.

MainStory: TopStory DamagesNews MedicalDevicesNews DesignManufacturingNews WarningsNews CausationNews EvidentiaryNews CaliforniaNews

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