Ex-Faegre Attorney’s Past Work for Biomet Not Disqualifying

Nov. 13, 2020, 8:54 PM

An attorney formerly employed as a litigation associate at the law firm that represents defendant Biomet Inc. in hip implant products liability litigation can continue working for the plaintiffs in that case because her work at Faegre Drinker Biddle & Reath LLP wasn’t substantially related to it, a federal court in Missouri said.

The U.S. District Court for the Eastern District of Missouri explained its reasons for denying Biomet’s motion to disqualify Jaclyn Thompson from representing a husband and wife who alleged its M2a Magnum metal-on-metal hip implant was defectively designed.

Biomet’s motion came shortly before the trial’s Oct. 5 start date, following five years of extensive multidistrict litigation discovery and two years of case-specific discovery. The court issued a summary order denying the disqualification motion and allowed the trial to proceed. A jury returned a verdict awarding Mary and Philip Bayes substantial actual damages.

Thompson is an associate at Bachus & Schanker LLC, the Bayeses lead counsel. She began her legal career several years earlier at Faegre Drinker Biddle & Reath, where she did routine, entry-level work on products liability cases involving Zimmer Holdings Inc.'s Durom Cup metal-on-metal hip implant.

Zimmer and Biomet were rivals at the time, but merged shortly before Thompson left the firm. Thompson entered an appearance on behalf of the merged firm in one case in Utah state court. That case involved a different hip implant and didn’t raise defective design claims, the court said.

Faegre began representing Biomet in the M2a Magnum litigation two years after Thompson left.

The court undertook an extensive look at six factors relevant to determining if Thompson’s representation of the Bayeses was substantially related to her representation of Biomet in the Utah case. It concluded this wasn’t “a close call.”

Only one factor arguably weighed in Biomet’s favor—the knowledge of Zimmer’s negotiating strategy Thompson gained during the Utah case, the court said Thursday. The court said it doubted Thompson’s knowledge of or contribution to those strategies was significant and, in any event, an adverse finding on a single factor wasn’t enough to disqualify her.

A trial on punitive damages is pending.

Judge Stephen R. Clark wrote the opinion.

The case is Bayes v. Biomet, Inc., E.D. Mo., No. 13-cv-800, 11/12/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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