Zimmer Biomet Wins Appeal Over $9 Million Durom Hip Damage Award

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.

No Redo on Liability

However, the appeals court did not agree to give Zimmer Biomet a new trial on liability, concluding Kline’s lawyer’s comments did not affect the jury’s liability finding.

The appeals court, according to court documents, determined that any prejudice was limited to the damages verdict. The trial court shut down any reference to a recall and struck from the record the statement the product is no longer sold.

“Kline’s counsel’s misconduct was not so pervasive nor so egregious that it prevented the jury from rationally considering the evidence admitted at trial,” the filing said.

“Gary Kline is gratified that the Court of Appeal agreed that Zimmer is responsible for his injuries and looks forward to the opportunity to prove to a jury the substantial damages that Zimmer caused him with its defective Durom Cup hip implant,” his counsel Michael Gurien of Waters Kraus & Paul told Law360 by email.

No date for a new trial was reported.