Product Liability Law

Nexgen Defamation Suits Amount to Scare Tactics, Say Targets


Plaintiff lawyers with product liability cases against knee replacement manufacturer Zimmer Holdings Inc. are getting hit with cease-and-desist letters from company, which claims the attorneys’ Internet writings and television advertisements distort the product’s safety record. The company faces 78 product liability actions over its artificial knee product known as NexGen CR-Flex Porous Femoral Component.

According to Bloomberg News, the manufacturer has sued at least seven plaintiff firms for defamation and trademark infringment in the past year, and sent warning letters to three others. Four of the firms sued have settled and issued retractions, while the others remain ongoing.

One of the lawsuits, filed Feb. 16 in the U.S. District Court for the Northern District of Indiana, accuses plaintiff lawyer Ari Kresch of making false and defamatory statements to the public.

“It’s a blatant attempt to try to frighten plaintiffs’ lawyers from pursuing these cases,” Brett Emison, a Lexington, Ky., lawyer who also received one of the letters, told Bloomberg.

Zimmer Holdings claims denies that, and a spokesperson stated that while their opposing counsels have a right to advertise, they don’t have a right to lie about the company’s artificial knees, which generate about $1.8 billion a year for the Warsaw, Ind., company.

David Logan, the dean of Roger Williams University, disagrees.

“It’s like putting a loaded gun on the table for negotiations,” says Logan, whose academic work focuses on tort law and the First Amendment. “You’re saying ‘Not only are we not going to give you any money, we’re going to go after you as well.’ “

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