Zimmer Accused of Destroying Evidence in LawsuitZimmer Accused of Destroying Evidence in Lawsuit

Plaintiffs suing Zimmer Holdings Inc. have filed a motion in federal court claiming that the company destroyed or lost 5500 of its Durom metal-on-metal hip implants.

The company's alleged action has placed the plaintiffs in a Catch-22 situation. When they asked to examine samples of the Durom Cup Acetabular Component hip-replacement device, the company said it only had five new and unused devices, and submitted two to the plaintiffs for testing, the motion says.  Zimmer's experts then criticized those tests due to the small sample size, it continues.

On October 15, the plaintiffs filed a spoliation motion, asking a federal judge in Newark, NJ, to impose sanctions against Zimmer.  Spolation is the "negligent destruction or mishandling of evidence," according to the motion. The company recalled the Durom hip-replacement devices in 2008, saying that U.S. surgeons had not received proper instructions in their implantation, according to the U.S. Food and Drug Administration.

Amid Zimmer's sales suspension of the Durom, the New York Times reported of surgeons who were complaining that they were increasingly having to perform replacement surgeries because the cup was failing, basically coming out of the hip socket instead of growing into it.

Because the suit was filed the same year, the motion claims that, "Zimmer was on notice of its duty to preserve its products no later than October 2008."

British researchers at Imperial College London reported in 2011 that "reduced sphericity of the femoral component may have resulted in equatorial bearing, leading to an increased frictional torque at the cup-bone interface, preventing bone in-growth, and culminating in acetabular loosening."

The plaintiffs' motion seeks an order restricting Zimmer's counsel and its fact and expert witnesses from attacking the scientific validity of product tests performed by the plaintiffs' experts. The plaintiffs also want the judge to give the jury a spoliation instruction so jurors may infer that Zimmer failed to preserve those devices "out of the well-founded fear that testing by Plaintiffs' experts would harm Zimmer in this litigation," the motion says.

Zimmer's filed documents with the U.S Food and Drug Administration indicating that it manufactured 24,235 U.S. Durom Cups between 2006 and 2008 while selling only 18,691 during the entire time the product was on the market, the motion said.

The plaintiffs' lawyers initially filed a version of the motion on March 20, 2014, after Zimmer was unable to provide plaintiffs more than two new and unused examples of the Durom cup at issue in the lawsuit. A magistrate judge tabled this original one week later and told the parties that the spoliation issues could be revisited once all of the testing issues had been resolved. That testing is now complete, the newer motion says.

Plaintiffs' lawyer George Tankard III declined comment on the motion. Zimmer's attorneys did not immediately return phone calls.

When first introduced in the late 1990s, metal-on-metal hip implants were seen as an answer when it came to providing hip implants that would last longer and allow younger patients to stay active. But they ended up proving problematic while undergoing wear and tear.

The devices have tragically become a multibillion-dollar bonanza for lawsuit lawyers--not just in the case of Zimmer but also for other major medical device companies such as Johnson & Johnson.

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Nancy Crotti is a contributor to Qmed and MPMN.

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