The Internet has been a boon for trial attorneys trying to find plaintiffs for class-action lawsuits. Now Warsaw-based Zimmer Inc. is taking the trial attorneys to court.
The maker of orthopedic implants filed suit in February to stop Detroit-area law firm Kresch Oliver PLLC from making allegedly false claims and using its trademarks on websites about one of Zimmer’s knee-replacement implants, which is called NexGen.
On a website at www.zimmernexgenkneereplacement.com, Kresch Oliver highlights study results released in 2010 that showed 36 percent of patients with the NexGen implant suffered pain in their knees two years after the implant surgery. And 9 percent of patients had to have a repeat surgery because they experienced a loosening of the joint after receiving the NexGen implant.
But that’s not the whole story, Zimmer retorted in a 30-page amended complaint in federal court in South Bend. The lawyers are citing only one study, of 108 surgeries conducted by two Chicago physicians, compared with about 3 million implanted since NexGen’s launch in 1994.
Zimmer also made sure to note that the joint loosening experienced by some patients did not involve all parts of its NexGen products, but only one, called the CR-Flex Porous Femoral Component.
The case is still pending, but Zimmer seems to have gotten what it wanted. The websites maintained by Kresch have since hedged their claims and, on the site www.1800lawfirm.com, even included the counter-arguments from Zimmer’s lawsuit.
Whether that spares the company a lawsuit is anyone’s guess. There is no record in the federal courts nationwide of Kresch Oliver partners Ari Kresch or Alyson Oliver filing any lawsuits against Zimmer. A message left at Kresch Oliver was not returned.
But Zimmer is certainly motivated to cut off class-action lawsuits before they get rolling.Since 2008 it has set aside $179 million to settle claims that its Durom cup hip implant had a high failure rate, resulting in joint loosening and follow-up surgery.
The lawsuits came as Zimmer’s sales were stagnating due to the recession. The company in January said it was launching a restructuring effort to reduce spending by more than $100 million a year. As part of that effort, the company confirmed to the Wall Street Journal this month that it will close a plant in South Carolina, putting 130 people out of work.