Allison Torres Burtka
Zimmer Holdings, Inc., which makes NexGen artificial knees, has sued at least seven plaintiff law firms and has sent cease-and-desist letters to several others, arguing that the firms’ Web sites and advertisements inaccurately describe NexGen products.
“To me, it’s pretty clear they’re trying to intimidate the plaintiff bar,” said Alyson Oliver, whose Southfield, Michigan-based law firm, Kresch Oliver, is among the defendants.
Patients who have undergone knee replacement surgery with NexGen implants argue that the products loosened prematurely, causing pain and loss of movement and requiring further surgery. Twenty-eight products liability cases against Zimmer were consolidated in a multidistrict litigation in the Northern District of Illinois on August 8. The Judicial Panel on Multidistrict Litigation noted that it had been notified of 45 more cases.
The lawsuits against plaintiff attorneys are strategic lawsuits against public participation (SLAPP), said lawyer Shezad Malik of Southlake, Texas, who received one of the cease-and-desist letters last month.
Kresch Oliver settled its case, agreeing to remove certain language from its Web site and stop running some ads. Three other firms sued by Zimmer also have reportedly settled and retracted certain information.
However, instead of dropping the suit, Zimmer filed a motion to amend its complaint against Kresch Oliver, saying the firm didn’t comply. Oliver said the firm agreed to the retraction to avoid wasting time and resources fighting the lawsuit, which it now has to do anyway. She noted that the firm is contemplating a countersuit against Zimmer.
“Zimmer’s tactics in the litigation overall are troubling,” Oliver noted, “because the company issued subpoenas to third-party law firms that are also litigating the products cases and didn’t limit the scope of those subpoenas to issues relevant to the litigation against the advertising firms.” If those subpoenas are honored, Zimmer would have access to all the law firms’ communications about the NexGen products litigation. This maneuver is “indicative of bad faith,” she said.
The letter received by Malik says his firm’s Web site “misleads the intended audience to believe . . . that there is a cause for widespread concern regarding Zimmer’s NexGen brand of knees. Not only does your advertisement defame Zimmer and its most successful and widely used knee brand, it also creates anxiety and fear in patients who have received a NexGen knee and are now pain free and enjoying a vastly improved quality of life.”
The letter also asks the firm to preserve all documents related to Zimmer knee products, including communications with other plaintiff lawyers.
In response, Malik removed the online articles and then edited them, adding excerpts from the cease-and-desist letter. Malik, who is also a practicing physician, said he uses his blog (part of his firm’s Web site) to educate clients and provide commentary of interest to the public. “I feel well protected by the First Amendment,” he said.
Zimmer is trying to stop plaintiff lawyers, but instead, they “have really banded together,” and Zimmer’s actions have piqued interest in the litigation, Oliver said.
Malik agreed that the company’s unusual tactics are unlikely to impede the products liability suits, even though Zimmer is targeting small law firms with fewer resources to fight a SLAPP lawsuit. “It’s the big corporations trying to silence the little guy,” he said. “At the end of the day, the truth will prevail, and the cases will be tried.”