Posted byOrthoEx Posted in
Posted on May 04, 2018

Walter Eisner • Fri, May 4th, 2018

A California appellate court has reversed a $9 million damage award against Zimmer Biomet Holdings, Inc. over the Durom Cup hip implant and granted the company a new trial to determine new, if any, damages. The court did not grant the company a new trial over liability, however.

Plaintiff Lawyer’s Loose Lips

The April 27, 2018 appellate decision, reported by Law360, cited comments by the plaintiff’s lawyer “about Zimmer’s value, passing reference to a recall of a different product and an indication that the Durom Cup isn’t sold anymore.” The appellate court also noted statements about the patient’s medical expenses.

According to court documents, after the suit was filed in 2010 against then Zimmer, Inc., a jury found the company negligently designed the Durom Cup, harming Gary Kline, the plaintiff, and failed to warn him about potential risks. The jury awarded Kline $153,317 in past medical expenses, even though the parties had already agreed that Kline’s medical expenses were about $73,000. The jury also awarded Kline $2.4 million for past noneconomic loss and $6.6 million for future noneconomic loss, according to court documents.

The trial court subsequently reduced the award of economic damages to roughly $73,000 but granted Zimmer Biomet a new trial for excessive noneconomic damages as well as the loose statements made by Kline’s attorney.

Kline appealed the ruling for a new trial.

The appeals court upheld the order for a new trial on damages because the trial court adequately considered evidence about Kline’s past and future pain when concluding the $9 million awarded was too high, according to the court filing reported by Law360.