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

by Reed Smith
Contact

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.

© Reed Smith | Attorney Advertising

Written by:

Reed Smith
Contact
more
less

Reed Smith on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.