Case 1:20-cv-01068-SOH Document 2 Filed 12/14/20 Page 1 of 30 PageID #: 3
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF ARKANSAS
`EL DORADO DIVISION
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`BARRY BRANT
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`vs.
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`BIOMET ORTHOPEDICS, LLC;
`BIOMET ORTHOPEDICS, INC.;
`BIOMET MANUFACTURING, CORP.;
`BIOMET MANUFACTURING, LLC;
`BIOMET, INC.;
`ZIMMER US, INC. d/b/a Zimmer Biomet;
`ZIMMER BIOMET HOLDINGS, INC.; and
`JOHN DOE COMPANIES A-Z
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`PLAINTIFF
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`Civil Case No. 1:20-cv-01068-SOH
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`DEFENDANTS
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`Comes now, Barry Brant, who brings this Complaint against the Defendants
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`Biomet Orthopedics, LLC; Biomet Orthopedics, Inc.; Biomet Manufacturing, Corp.;
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`Biomet Manufacturing, LLC; Biomet, Inc.; Zimmer US, Inc. d/b/a Zimmer Biomet; Zimmer
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`Biomet Holdings, Inc.; and John Doe Companies A-Z, alleges and states:
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`I. INTRODUCTION
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`1.
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`This personal injury/products liability lawsuit arises from a failed, defective,
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`and unreasonably dangerous elbow medical device designed, manufactured, and sold by
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`the Biomet Defendants, which exploded while still implanted inside Plaintiff’s left elbow.
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`This explosion occurred on or about February 25, 2018. The failed, defective, and
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`unreasonably dangerous elbow medical device caused catastrophic injuries and
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`damages to Plaintiff. Plaintiff brings this personal injury/products liability lawsuit against
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`the Biomet Defendants pursuant to Arkansas state law seeking remedy for the damages
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`suffered by him as a result of the failed, defective, and unreasonably dangerous elbow
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`implant.
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`II. PARTIES
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`2.
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`Plaintiff incorporates by reference herein the preceding paragraph as
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`though stated word-for-word.
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`A. Plaintiff
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`3.
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`Barry Brant is a resident of Union County, Arkansas.
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`B. Biomet Orthopedics, LLC
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`4.
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`Biomet Orthopedics, LLC is a for-profit limited liability company formed
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`under the laws of Indiana with its principal place of business also in Indiana.
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`5.
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`At all times pertinent to this Complaint, Biomet Orthopedics, LLC was and
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`is in the business of designing, manufacturing, marketing, promoting, advertising, and
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`selling medical devices including the subject Discovery Elbow System and the
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`corresponding humeral kit and ulna stem, which had been implanted inside Plaintiff’s left
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`elbow.
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`6.
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`Specifically, Biomet Orthopedics, LLC or by and through its subsidiaries
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`derives substantial revenues from business in Arkansas.
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`7.
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`Biomet Orthopedics, LLC may be served with process in this action by
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`delivering summons and copy of this complaint with process by serving its registered
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`agent for service, which is Corporation Service Company.
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`C. Biomet Orthopedics, Inc.
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`8.
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`Biomet Orthopedics, Inc. is a for-profit corporation incorporated under the
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`laws of Indiana with its principal place of business also in Indiana.
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`9.
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`At all times pertinent to this Complaint, Biomet Orthopedics, Inc. was and is
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`in the business of designing, manufacturing, marketing, promoting, advertising, and
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`selling medical devices including the subject Discovery Elbow System and the
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`corresponding humeral kit and ulna stem, which had been implanted inside Plaintiff’s left
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`elbow.
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`10. Specifically, Biomet Orthopedics, Inc. or by and through its subsidiaries
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`derives substantial revenues from business in Arkansas.
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`11. Biomet Orthopedics, Inc. may be served with process in this action by
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`delivering summons and copy of this complaint with process by serving its registered
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`agent for service, which is Corporation Service Company.
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`D. Biomet Manufacturing, Corp.
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`12. Biomet Manufacturing, Corp. is a for-profit corporation incorporated under
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`the laws of Indiana with its principal place of business also in Indiana.
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`13. At all times pertinent to this Complaint, Biomet Manufacturing, Corp. was
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`and is in the business of designing, manufacturing, marketing, promoting, advertising,
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`and selling medical devices including the subject Discovery Elbow System and the
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`corresponding humeral kit and ulna stem, which had been implanted inside Plaintiff’s left
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`elbow.
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`14. Specifically, Biomet Manufacturing, Corp. or by and through its subsidiaries
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`derives substantial revenues from business in Arkansas.
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`15. Biomet Manufacturing, Corp. may be served with process in this action by
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`delivering summons and copy of this complaint with process by serving its registered
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`agent for service, which is Corporation Service Company.
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`E. Biomet Manufacturing, LLC
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`16. Biomet Manufacturing, LLC is a for-profit limited liability company formed
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`under the laws of Indiana with its principal place of business also in Indiana.
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`17. At all times pertinent to this Complaint, Biomet Manufacturing, LLC was and
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`is in the business of designing, manufacturing, marketing, promoting, advertising, and
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`selling medical devices including the subject Discovery Elbow System and the
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`corresponding humeral kit and ulna stem, which had been implanted inside Plaintiff’s left
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`elbow.
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`18. Specifically, Biomet Manufacturing, LLC or by and through its subsidiaries
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`derives substantial revenues from business in Arkansas.
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`19. Biomet Manufacturing, LLC may be served with process in this action by
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`delivering summons and copy of this complaint with process by serving its registered
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`agent for service, which is Corporation Service Company.
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`F. Biomet, Inc.
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`20. Biomet, Inc. is a for-profit corporation incorporated under the laws of Indiana
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`with its principal place of business also in Indiana.
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`21. At all times pertinent to this Complaint, Biomet, Inc. was and is in the
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`business of designing, manufacturing, marketing, promoting, advertising, and selling
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`medical devices including the subject Discovery Elbow System and the corresponding
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`humeral kit and ulna stem, which had been implanted inside Plaintiff’s left elbow.
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`22. Specifically, Biomet, Inc. or by and through its subsidiaries derives
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`substantial revenues from business in Arkansas.
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`23. Biomet, Inc. may be served with process in this action by delivering
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`summons and copy of this complaint with process by serving its registered agent for
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`service, which is Corporation Service Company.
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`G. Zimmer US, Inc. d/b/a Zimmer Biomet
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`24.
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`Zimmer US,
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`Inc. d/b/a Zimmer Biomet
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`is a
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`for-profit corporation
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`incorporated under the laws of Delaware with its principal place of business in Indiana.
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`25. At all times pertinent to this Complaint, Zimmer US, Inc. d/b/a Zimmer
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`Biomet was and is in the business of designing, manufacturing, marketing, promoting,
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`advertising, and selling medical devices including the subject Discovery Elbow System
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`and the corresponding humeral kit and ulna stem, which had been implanted inside
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`Plaintiff’s left elbow.
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`26. Specifically, Zimmer US, Inc. d/b/a Zimmer Biomet or by and through its
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`subsidiaries derives substantial revenues from business in Arkansas.
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`27.
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`Zimmer US, Inc. d/b/a Zimmer Biomet may be served with process in this
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`action by delivering summons and copy of this complaint with process by serving its
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`registered agent for service, which is Corporation Service Company.
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`H. Zimmer Biomet Holdings, Inc.
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`28.
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`Zimmer Biomet Holdings, Inc. is a for-profit corporation incorporated under
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`the laws of Delaware with its principal place of business in Indiana.
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`29. At all times pertinent to this Complaint, Zimmer Biomet Holdings, Inc. was
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`and is in the business of designing, manufacturing, marketing, promoting, advertising,
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`and selling medical devices including the subject Discovery Elbow System and the
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`corresponding humeral kit and ulna stem, which had been implanted inside Plaintiff’s left
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`elbow.
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`30. Specifically, Zimmer Biomet Holdings, Inc. or by and through its subsidiaries
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`derives substantial revenues from business in Arkansas.
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`31.
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`Zimmer Biomet Holdings, Inc. may be served with process in this action by
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`delivering summons and copy of this complaint with process by serving its registered
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`agent for service, which is Corporation Service Company.
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`32. Collectively, Biomet Orthopedics, LLC; Biomet Orthopedics, Inc.; Biomet
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`Manufacturing, Corp.; Biomet Manufacturing, LLC; Biomet, Inc.; Zimmer US, Inc. d/b/a
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`Zimmer Biomet; and Zimmer Biomet Holdings, Inc. will be referred to as “Biomet
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`Defendants” herein.
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`33. Various individuals and entities not named as Defendants herein may have
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`directly participated in the unlawful conduct alleged herein, may have performed acts and
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`made statements in furtherance thereof or omissions, which contributed to or caused the
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`crash. These various individuals and entities may be agents, affiliates, alter-egos,
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`partners, or joint-ventures of the named Defendants. While actively engaged in the
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`management, direction or control of its affairs, each of the John Doe unknown tortfeasors
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`may have performed each of the acts alleged herein, or alternatively, each John Doe
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`unknown tortfeasors authorized or ordered duly authorized officers, agents, employees,
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`or representatives to perform said acts. These tortfeasors, upon information and belief,
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`permitted tortious acts to be committed in Arkansas.
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`34.
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`To the extent that such John Doe tortfeasor(s) are liable for some or all of
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`Plaintiff’s damages, the identity of said tortfeasor(s) has not been determined as of this
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`date and it is necessary to conduct discovery in order to determine the identity of said
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`tortfeasor. Pursuant to Ark. Code Ann. § 16-56-125, Plaintiff has attached as Exhibit A
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`an Affidavit and incorporated herein by reference to toll the statute of limitations for the
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`wrongful actions and/or omissions alleged herein against the John Doe Companies A -
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`Z. In the event that a John Doe Tortfeasor is identified for one or more of the causes of
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`action listed below, Plaintiff will amend this Complaint in accordance with Ark. Code Ann.
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`§ 16-56-125.
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`35. At all times material hereto, each Defendant was acting as the agent and
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`employee of each and every other defendant and was acting in the course and scope of
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`that agency and employment.
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`36.
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`Furthermore,
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`the mergers, sales, and acquisitions of
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`the various
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`Defendants named above transferred both corporate assets and liabilities through to the
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`successor corporations and/or partnerships. The above-named Defendants are liable for
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`the acts and omissions, including but not limited to strict liability, fault, failure to warn,
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`negligence, and damages as pled below, of their subsidiaries, agents, employees, and/or
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`servants of said Defendants and for their parent and principal. At all times relevant
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`hereto, the above-named Defendants acted through their duly authorized subsidiaries,
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`agents, employees, and/or servants who were acting within the scope of their
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`employment and/or agency and in furtherance of the Defendants’ business, whether
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`through its principal or subsidiary.
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`37.
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`Finally, upon information and belief, the acts of Defendants were conducted
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`in concert pursuant to an agreement amongst themselves to act in a collective manner.
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`All defendants, therefore, are jointly and severally liable for the acts complained of herein.
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`III. JURISDICTION AND VENUE
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`38. Plaintiff incorporates by reference herein the preceding paragraphs as
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`though stated word-for-word.
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`A. Jurisdictional Facts regarding All Defendants
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`39.
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`This Court has jurisdiction over the subject matter of this lawsuit pursuant
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`to 28 U.S.C. § 1332(d) because there is complete diversity of parties. Plaintiff also seeks
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`more than $75,000 for damages and punitive damages.
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`40.
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`The Biomet Defendants are subject to specific personal jurisdiction in this
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`matter now before this Court.
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`41. When assessing specific personal jurisdiction, the Court's first step "is to
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`determine whether the connection between the forum and the episode-in-suit could justify
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`the exercise of specific jurisdiction" because courts have the "ability to hear claims against
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`out-of-state defendants when the episode-in-suit occurred in the forum or the defendant
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`purposefully availed itself of the forum,"1 and this case far exceeds that threshold.
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`42.
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`The location of the episode-in-suit is the location of the personal injury
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`regardless of where the product was manufactured or where it was first sold,2 and that
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`location is Arkansas.
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`43.
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`The affiliation between the Arkansas forum and the episode-in-suit warrants
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`specific personal jurisdiction, which is properly exercised based on an "affiliation between
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`the forum and the underlying controversy [such as] an occurrence that takes place in the
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`1 Daimler AG v. Bauman, 134 S. Ct. 746, 755, 762 (2014).
`2 Goodyear Dunlop Tires Ops. v. Brown, 131 S.Ct. 2846, 2851 (2011) ("the episode-in-suit, the bus
`accident, occurred in France" notwithstanding the fact that "the tire alleged to have caused the accident
`was manufactured and sold" in Turkey).
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`forum"3 (like the location of the product failure in this controversy) so long as the fairness
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`factors are met.4
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`44. When assessing specific personal jurisdiction, the Court's second step "is
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`to consider several additional factors to assess the reasonableness of entertaining the
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`case."5
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`45. When a corporation "purposefully avails itself of the privilege of conducting
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`activities within the forum State … it has clear notice that it is subject to suit there [and if]
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`the sale of a product of a manufacturer ... is not simply an isolated occurrence, but arises
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`from the efforts of the manufacturer ... to serve directly or indirectly, the market for its
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`product in other States, it is not unreasonable to subject it to suit in one of those States if
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`its allegedly defective merchandise has there been the source of injury to its owner or to
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`others,"6 and this aptly describes the Biomet Defendants’ relationship with Arkansas.
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`46. Where nonresident defendants "'purposefully derive benefit' from their
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`interstate activities … it may well be unfair to allow them to escape having to account in
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`other States for consequences that arise proximately from such activities [because] the
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`Due Process Clause may not readily be wielded as a territorial shield to avoid interstate
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`obligations that have been voluntarily assumed," 7 and the Biomet Defendants have
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`purposefully obtained such benefits.
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`47.
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`"The placement of a product into the stream of commerce" plus "[a]dditional
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`conduct of the defendant may indicate an intent or purpose to serve the market in the
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`3 Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, 137 S. Ct. 1773, 1780
`(2017).
`4 Gibbs v. PrimeLending, 2011 Ark. 255, 381 S.W.3d 829 (citing International Shoe Co. v. Washington,
`326 U.S. 310 (1945)); John Norrell Arms, Inc. v. Higgins, 332 Ark. 24, 962 S.W.2d 801 (1998).
`5 Daimler AG, 134 S. Ct. at 762.
`6 See World–Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
`7 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473–74, 105 S. Ct. 2174, 2182–83 (1985).
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`forum State, for example, … advertising in the forum State [or] establishing channels for
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`providing regular advice to customers in the forum State,"8 and the Biomet Defendants
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`have engaged in such advertising and has established such channels of communication
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`in Arkansas.
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`48.
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`"The stream-of-commerce cases … relate to exercises of specific
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`jurisdiction in products liability actions, in which a nonresident defendant, acting outside
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`the forum, places in the stream of commerce a product that ultimately causes harm inside
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`the forum," because the "[f]low of a manufacturer's products into the forum may bolster
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`an affiliation germane to specific jurisdiction,"9 and this aptly characterizes the conduct
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`by the Biomet Defendants in relation to the harms at issue which Defendants have caused
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`inside the Arkansas forum.
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`49. A nonresident defendant is subject to personal jurisdiction under the
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`Arkansas long-arm statute to the maximum extent permitted by the Due Process of Law
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`Clause of the Fourteenth Amendment of the United States Constitution.10
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`50.
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`The Arkansas Supreme Court has considered three factors in determining
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`whether due process requirements have been satisfied when personal jurisdiction has
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`been exercised over nonresident defendants. Those three factors11 include:
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`a. A defendant must purposefully avail himself of privilege of acting
`in forum statue or causing a consequence in forum state;
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`b. Cause of action must arise from or relate to defendant’s contacts
`with forum state; and
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`8 Asahi Metal Indus. Co., Ltd. v. Superior Court of California, Solano County, 480 U.S. 102, 112, 107 S.
`Ct. 1026, 1032 (1987) (O'Connor, J., plurality).
`9 Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2849 (2011) (emphasis in original).
`10 A.C.A. § 16-4-101.
`11 Lawson v. Simmons Sporting Goods, Inc., 2019 Ark. 84; 569 S.W.3d 865 (2019).
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`c. Acts of defendant or consequences caused by defendant must
`have substantial enough connection with forum state to make
`exercise of personal jurisdiction over defendant reasonable.
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`51. As outlined in this Complaint, all three factors have been satisfied for all
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`nonresident Defendants in this action.
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`52.
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`Furthermore, there is no burden on the Biomet Defendants to litigate this
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`civil action in the Arkansas forum where the personal injury occurred.
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`53. Arkansas has an interest in adjudicating this dispute which occurred in
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`Arkansas, which involved the assessment of conduct that occurred in Arkansas as well
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`as products which failed in Arkansas, and which catastrophically injured an Arkansas
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`resident.
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`54. Plaintiff’s interest in obtaining convenient and effective relief militates in
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`favor of litigating in the Arkansas forum where the witnesses to the failure and the
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`witnesses to the immediate post-failure treatments and investigation are located.
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`55.
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`The interstate judicial system's interest in obtaining the most efficient
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`resolution of controversies warrants litigating this case in Arkansas where the defective
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`products at issue failed, where the personal injury occurred, and where the victim resided.
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`56.
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`Further, the shared interest of the several States in furthering fundamental
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`substantive social policies warrants litigating this case in Arkansas where the defective
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`products at issue failed, where the personal injury occurred, and where the victim resided.
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`57.
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`The Biomet Defendants researched, developed, designed, industrialized,
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`manufactured, assembled, inspected, tested, marketed, distributed, sold, and placed into
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`the stream of commerce the subject Discovery Elbow System including the corresponding
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`humeral kit and ulna stem involved in the personal injury at issue, which caused
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`catastrophic injuries to Plaintiff.
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`58.
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`The exercise of specific personal jurisdiction over the Biomet Defendants
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`pursuant to the Arkansas long-arm statute is consistent with the Due Process Clause and
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`the principles of fundamental fairness by virtue of the Biomet Defendants doing business
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`in Arkansas.
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`59.
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`The Biomet Defendants committed the torts at issue in this case where the
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`causation of damages is an element of the tort and that element occurred in Arkansas.12
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`60.
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`The Biomet Defendants engage in such continuous, systematic behavior in
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`Arkansas, and the Biomet Defendants continually conducts business in Arkansas that
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`each separate Biomet defendant is “at home” in Arkansas.
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`61.
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`The Biomet Defendants sell their products to numerous medical facilities
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`and medical doctors in Arkansas.
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`62.
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`The Biomet Defendants actively engage in the promotion and use of its
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`products in Arkansas.
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`63.
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`The Biomet Defendants continuously advertise, market, distribute, and sell
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`their products inside of Arkansas, and the Biomet Defendants derive profit from their
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`businesses due to their transactions in Arkansas.
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`64.
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`The Biomet Defendants purposefully avail themselves of the privilege and
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`opportunity to conduct business in Arkansas.
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`12 A necessary element of the strict liability torts asserted against Defendants in this civil action requires
`proof that the defect in Defendants’ product contributed to causing "plaintiff's injuries or damages."
`Nationwide Rentals Co., Inc. v. Carter, 298 Ark. 97, 765 S.W.2d 931 (1989). In this case, the causation-of-
`damages element occurred in Arkansas. Another essential element of any products liability case is that the
`defendant “was engaged in the business of manufacturing, assembling, selling, leasing, or distributing the
`product.” Pilcher v. Suttle Equipment Co., 365 Ark. 1, 223 S.W.3d 789 (2006).
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`65.
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`The Biomet Defendants’ sale of the subject elbow system and the
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`component parts are not simply an isolated occurrence, but arises from the Biomet
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`Defendants’ efforts to serve, directly and indirectly, the market for specific products in
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`Arkansas and the 49 other states.
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`66.
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`It is reasonable to subject the Biomet Defendants to suit in Arkansas
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`because the defective subject elbow system and the component parts have been the
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`source of injury to the Plaintiff in Arkansas.
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`67. Because the Biomet Defendants purposefully derive benefit from their
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`interstate activities, it would be unfair to allow the Biomet Defendants to escape having
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`to account in Arkansas for consequences that arise proximately from the Biomet
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`Defendants’ interstate activities.
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`68. Allowing the Biomet Defendants to escape jurisdiction would improperly
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`allow the Biomet Defendants to wield the Due Process Clause as a territorial shield to
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`avoid interstate obligations that he Biomet Defendants have voluntarily assumed.
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`69.
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`In addition to placing the subject elbow system and the component parts
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`into the stream of commerce, the Biomet Defendants have shown an intent to serve the
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`market in Arkansas by engaging in the additional conduct of advertising in Arkansas.
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`70.
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`The Biomet Defendants placed in the stream of commerce the subject
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`elbow system and the component parts, which ultimately caused harm inside Arkansas
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`as a result of the flow of the Biomet Defendants’ products into Arkansas.
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`71.
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`The Biomet Defendants’ contacts with Arkansas include the sale of medical
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`devices such as those referenced here but not limited to that sole product.
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`72.
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`The Biomet Defendants have reaped profits from the sale of their products,
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`including the subject elbow system and the component parts, in Arkansas.
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`B. Venue
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`73. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because
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`(1) Plaintiff resides in this District; (2) the Biomet Defendants have engaged in substantial
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`conduct and business relevant to Plaintiff’s claims within this District; and (3) Plaintiff has
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`suffered substantial losses due to the Biomet Defendants’ wrongful conduct within this
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`District.
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`IV. FACTUAL ALLEGATIONS
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`74. On or about August 6, 2010, Plaintiff had a total elbow arthroplasty
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`performed on his left elbow. This surgery was performed by Dr. Michael Moore at CHI St.
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`Vincent in Little Rock, AR.
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`75. As part of the August 6, 2010 procedure, Dr. Moore installed the Biomet
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`Discovery Elbow System, which included a 5 mm x 100 mm humeral component and a 3
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`mm x 115 mm ulnar component.
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`76.
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`The Biomet Defendants designed, manufactured, and sold the Biomet
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`Discovery Elbow System (Reference #114700), which was inserted into Plaintiff on
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`August 6, 2010.
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`77.
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`The Biomet Defendants designed, manufactured, and sold the 5 mm x 100
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`mm humeral component (Reference #114906), which was inserted into Plaintiff on August
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`6, 2010.
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`78.
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`The Biomet Defendants designed, manufactured, and sold the 3 mm x 115
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`mm ulnar stem (Reference #114816), which was inserted into Plaintiff on August 6, 2010.
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`79. Attached below is the sticker sheet related to these medical devices which
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`were inserted on August 6, 2010:
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`Case 1:20-cv-01068-SOH Document 2 Filed 12/14/20 Page 16 of 30 PageID #: 18
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`80.
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`The subject Biomet Discovery Elbow System and/or the component parts
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`were defectively designed, manufactured, and marketed.
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`81. During the night on or about February 25, 2018, Plaintiff tried to get of bed.
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`82. As Plaintiff was getting out of bed on or about February 25, 2018, he placed
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`his left arm on his bed to balance/steady himself.
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`83. As Plaintiff was steadying himself on or about February 25, 2018, Plaintiff
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`heard a loud bang and felt immediate severe onset of pain.
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`84.
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`The source of the loud bang and the immediate severe onset of pain
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`originated from Plaintiff’s left elbow.
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`85.
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`The source of the loud band and the immediate severe onset of pain
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`originating from Plaintiff’s left elbow occurred because the subject Biomet Discovery
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`Elbow System and/or the component parts failed and broke while inside of Plaintiff.
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`86.
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`The subject ulnar stem, which was designed, manufactured, and sold by
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`Biomet, had fractured.
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`87.
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`The failure of the Biomet Discovery Elbow System including the component
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`parts was a producing and proximate cause of the catastrophic injuries and the damages
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`suffered by Plaintiff.
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`V. CAUSES OF ACTION
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`A. FIRST CAUSE OF ACTION – STRICT LIABILITY PURSUANT TO ARK. CODE
`ANN. §16-116-101, et seq. – ARKANSAS PRODUCTS LIABILITY ACT AGAINST
`THE BIOMET DEFENDANTS13
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`88. Plaintiff incorporates by reference herein the preceding paragraphs as
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`though stated word-for-word.
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`13 Please see ¶32 for a list of the “Biomet Defendants” entities.
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`Case 1:20-cv-01068-SOH Document 2 Filed 12/14/20 Page 17 of 30 PageID #: 19
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`89. At all times material to this action, the Biomet Defendants were in the
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`business of designing, engineering, developing, testing, approving, manufacturing,
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`fabricating, assembling, equipping, inspecting, repairing, labeling, advertising, promoting,
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`marketing, distributing, wholesaling, selling, and supplying medical devices, including the
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`subject Biomet Discovery Elbow System and component parts, throughout the United
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`States, including Arkansas.
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`90.
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`The Biomet Defendants designed, engineered, developed,
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`tested,
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`approved, manufactured, fabricated, assembled, equipped, inspected, repaired, labeled,
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`advertised, promoted, marketed, distributed, wholesaled, sold, supplied, and placed into
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`the stream of commerce a defective and unreasonably dangerous product, i.e. the subject
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`Biomet Discovery Elbow System and component parts, which is the subject of this
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`Complaint.
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`91. Upon information and belief, the subject Biomet Discovery Elbow System
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`and component parts, which is the subject of this Complaint, were expected to, and did,
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`reach the user and/or consumer without substantial change in the condition in which they
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`were sold and were, at the time of the event, in essentially the same condition as when
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`they left the hands of the Biomet Defendants. However, even if the subject Biomet
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`Discovery Elbow System and component parts had been altered in some fashion before
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`causing catastrophic injuries and damages to Plaintiff, the substitution of alternative
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`component parts is well-known and foreseeable by the Biomet Defendants.
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`92. As stated in several particulars previously, the subject Biomet Discovery
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`Elbow System and component parts as designed and manufactured by the Biomet
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`Defendants were in a defective condition and unreasonably dangerous to foreseeable
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`Case 1:20-cv-01068-SOH Document 2 Filed 12/14/20 Page 18 of 30 PageID #: 20
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`users, including Plaintiff.
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`93.
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`The Biomet Defendants were aware that the subject Biomet Discovery
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`Elbow System and component parts, as designed, manufactured, and sold were defective
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`and unreasonably dangerous, and that a safer design was feasible and available.
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`94.
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`The safer alternative designs would have prevented or significantly reduced
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`the risk of the accident and the injuries and damages occurred in this case without
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`substantially impairing the product’s utility.
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`95.
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`Furthermore,
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`the safer alternative designs were economically and
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`technologically feasible at the time the product left the control of the Biomet Defendants
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`by the application of existing and reasonably achievable scientific knowledge.
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`96.
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`The defects and dangers of the Biomet Discovery Elbow System and
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`component parts, which is the subject of this Complaint, were unknown to Plaintiff.
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`97. At the time the subject Biomet Discovery Elbow System and component
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`parts left the control of the Biomet Defendants, they were defective in design and
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`manufacture, and they were unreasonably dangerous to a person who might reasonably
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`be expected to use them. These defects include, but are not limited to, the conditions
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`described in the following subparagraphs:
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`
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`a. The subject Biomet Discovery Elbow System and component
`parts lacked adequate and sufficient warnings and instructions
`about the risks, dangers, and harms and reasonable means to
`reduce such risks, dangers and harms.
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`b. The subject Biomet Discovery Elbow System and component
`parts were unsafe in its design and manufacture.
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`c. The Biomet Defendants had a duty to warn those who may
`come into contact with the Biomet Discovery Elbow System
`and component parts of the risks or defects that were known
`or reasonably should have been known, including but not
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`Case 1:20-cv-01068-SOH Document 2 Filed 12/14/20 Page 19 of 30 PageID #: 21
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`necessarily limited to the risks posed by the stems failing. The
`Biomet Defendants failed to warn Plaintiff of the defects or
`dangers inherent to its product, which was a proximate cause
`of the catastrophic injuries to Plaintiff.
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`d. The Biomet Defendants had a duty to use ordinary care in the
`design, manufacture, assembly, testing, inspection and sale of
`the Biomet Discovery Elbow System and component parts that
`is the subject of this Complaint so that it could be safely used
`for the purpose it was made. The Biomet Defendants
`negligently and carelessly
`failed
`to properly design,
`manufacture, assemble, test and inspect the Biomet Discovery
`Elbow System and component parts, which as a proximate
`result thereof, caused the catastrophic injuries to Plaintiff.
`Specifically, the Biomet Defendants failed to warn Plaintiff and
`others similar situated that the stems would fail.
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`e. The stems on the subject Biomet Discovery Elbow System and
`component parts were inadequate to protect and/or prevent
`users from foreseeable injuries.
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`98. As a direct and proximate result of the defective and unreasonably
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`
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`dangerous condition of the Biomet Discovery Elbow System and component parts, the
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`medical device failed, which caused life-altering catastrophic injuries and damages to
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`Plaintiff.
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`99.
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`The Biomet Defendants are strictly liable for all damages proximately
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`caused by the defective and unreasonably dangerous condition of the Biomet Discovery
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`Elbow System and