Rule 37 Does Not Apply Where Item Was Lost Before Any Preservation Order Was Entered

Biomet made hip implants that allegedly became defective and were removed from patients and replaced with other implants. Biomet sought dismissal of some claims because the plaintiff failed to preserve the devices. The court denied the motion because there was no preservation order in place when the implants were allegedly lost. The court explained:

At a minimum, for a plaintiff to have violated a discovery order that would subject her to Rule 37 sanctions, he or she must have been bound by the discovery order when it was possible for her to comply. None of these plaintiffs were.

Biomet cites no cases that support the proposition that a plaintiff is subject to the orders of an MDL court before that plaintiff has joined the MDL. Biomet cites Bennett v. Bayer Healthcare Pharmaceuticals, Inc., 577 F. App’x 616 (7th Cir. 2014) for this proposition, but Bennett offers no such support. The plaintiff in that case was bound by an MDL court’s discovery order that predated her transfer to the MDL court, but the court order only bound her once her case was transferred to the MDL court and she was still able to comply. In contrast:

None of these plaintiffs’ cases had been transferred to this court by the time of the revision surgery. Ms. Baker, Mr. Marous and Mr. Bauman hadn’t filed any case at all by the time of the revision surgery. With respect to all plaintiffs except Ms. Glasser, compliance with any obligation to preserve the explant appears to have been impossible by the time he or she joined the MDL. For Ms. Glasser, compliance appears to have been impossible for the device removed during her final revision surgery.


Source: MAROUS v. BIOMET, INC., Dist. Court, ND Indiana 2017 – Google Scholar

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