“After” What? Subsequent Remedial Measures Excluded In Zimmer Evidentiary Win

by Reed Smith

Last weekend, we celebrated Mother’s Day.  As we contemplated the text message and the Tufts University mug we received from the Drug and Device Rock Climber, it occurred to us that we could hardly remember a time before that mercurial force of nature punched our admission ticket to this holiday.  There is only “after.”  And “after” – specifically, “after what?” – was the issue facing the United States District Court for the District of New Jersey in Brady v. Zimmer, Inc., 2015 WL 2092850 (D.N.J. May 4, 2015), a decision on a motion in limine filed by defendant Zimmer.

Brady involved a Durom Cup hip implant.  Plaintiff received the implant in a total hip replacement in August 2006.  About six months later, she “began experiencing a gradual increase in pain.” Brady, 2015 WL 2092850 at *1.  In 2007, Zimmer began receiving complaints that the Durom Cup was loosening after implantation.  It conducted an investigation from December 2007 to July 2008, then it suspended the sale of the Durom Cup for a month while it revised its training of surgeons.  Id.  In August 2008, after taking x-rays, Plaintiff’s physician concluded that plaintiff’s symptoms were due to loosening of her Durom Cup.  Plaintiff underwent revision surgery in December 2008 and received a replacement implant in April 2009.  Id.  She filed her Complaint in the Eastern District of Texas on March 8, 2010, and the case was subsequently transferred to the MDL pending in the District of New Jersey.  Id.

Zimmer sought to exclude evidence of its 2007-2008 investigation and of the 2008 suspension of Durom Cup sales, arguing that evidence it obtained and conduct it undertook after Plaintiff’s August 2006 implant surgery qualified as “subsequent remedial measures” that were inadmissible under Fed. R. Evid. 407.  Id. at *2.  As the Court explained, Rule 407 “bars the admission of evidence of remedial measures taken after an event that would have made the event less likely to occur.”  Id., citing Fed. R. Evid. 407 (additional citations omitted).
But what was the relevant “event?”  While Zimmer asserted that it was Plaintiff’s August 2006 implant surgery, Plaintiff argued that it was her April 2009 revision surgery.  The Court agreed with Zimmer, explaining, “The ‘event’ referred to in the Rule is the accident which caused Plaintiff’s damages . . . .”  Id. (citations omitted) . . . [T]he revision surgery is not what caused Plaintiff’s alleged harm and damages.”  Id.   Thus, remaining refreshingly true to both the letter and the spirit of Rule 407, the Court granted Zimmer’s motion, holding, “Subsequent remedial measures taken after the August 23, 2006 implant surgery are not relevant to the claims at issue . . . and may not be used as proof of negligence or culpable conduct.”  Id. at *3.  

POSTSCRIPT:  “After” continued to bear fruit for Zimmer.  In a bifurcated trial, with statute of limitations tried first and everything else to be tried afterwards, if necessary, the jury found that Plaintiff filed her Complaint after the limitations period had run and rendered a defense verdict on statute of limitations.  This turned a potentially months-long trial into one in which Zimmer prevailed in a matter of days.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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