Judge Refuses To Halt Biomet Trial After Juror Caught Virus

By Cara Salvatore
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Law360 (November 18, 2020, 10:56 PM EST) -- The punitive-damages phase of a trial against medical device maker Biomet Inc. concluded Wednesday after a Missouri federal judge rebuffed the company's efforts to pause the proceeding and push for a mistrial after one juror contracted COVID-19.

Mary Bayes' case alleging a defect in her hip implant went to trial last month and reached a compensatory-damages verdict in her favor Oct. 22, then took a break. The punitive-damages phase finished Wednesday, according to court records, and neither verdict has been made publicly available.

But since the initial verdict, Biomet's lawyers have asked the court to reconsider the compensatory-damages verdict, citing one juror's positive COVID-19 test during the earlier phase. The pandemic was surging to a third wave by late October, and since then has only reached new heights.

U.S. District Judge Stephen Clark ruled Tuesday against Biomet's motion for a continuance or mistrial, though his reasoning was not immediately clear.

But on Wednesday morning, Biomet pushed again for a mistrial, citing a revelation "prior to the beginning of the punitive damages phase" that one juror had been excused for exposure to the novel coronavirus.

Biomet said this led to a new jury makeup, and an unacceptable state of affairs.

"Trying the punitive phase to a different jury" from the one that heard the compensatory-damages phase would violate the Seventh Amendment, Biomet's lawyers argued.

"The jury instructions and jury verdict the court has adopted for the punitive phase expressly required the jury to rely on its verdict finding negligent design in the compensatory phase," Biomet said. "The jury, as presently composed, did not reach a verdict in the compensatory phase of the trial. With the excusing of Juror No. 1, the court created a new jury."

Lawyers for Bayes and Biomet were not immediately available for comment.

Bayes said she got both hips replaced in early 2008 with a product called the M2a Magnum that Biomet should have known had defects because it was based on an earlier design, called the M2a Taper, that had allegedly already caused problems. Bayes began experiencing pain in 2010, and had her first revision surgery in March 2011, in her left hip.

"As a result of Biomet's conduct, plaintiffs will establish that Mrs. Bayes suffered eleven dislocations and seven revision surgeries," her lawyers said in August.

Bayes is represented by Darin Schanker of Bachus & Schanker.

Biomet is represented by John Mandler of Faegre Drinker Biddle & Reath LLP.

The case is Bayes v. Biomet, case number 4:13-cv-00800, in the U.S. District Court for the Eastern District of Missouri.

--Editing by Breda Lund.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Bayes et al v. Biomet, Inc. et al


Case Number

4:13-cv-00800

Court

Missouri Eastern

Nature of Suit

Personal Inj. Prod. Liability

Judge

Stephen R. Clark

Date Filed

April 26, 2013

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