Product-liability suits in the United States

analysisAccording to the chief restructuring officer, about 2,600 patients, 1.7% of potentially affected U.S. patients, had sued Exactech in the United States after the recalls. All federal suits were consolidated on October 7, 2022 into a multidistrict litigation in the Eastern District of New York, with about 1,840 suits pending there at the petition date, and over 740 suits were pending in Florida state courts. Exactech defended its alleged liability, sought without success in 2022 to have the Florida cases dismissed on forum non conveniens grounds, and negotiated with counsel for the plaintiffs, making its most recent offer to resolve the MDL in mid-July 2024; no consensual resolution was reached. The trust's complaint counts more than 2,500 suits in federal, state and foreign courts at the petition date, including more than 55 unconsolidated suits in other state courts and more than 60 foreign actions. ^{1 2}

analysisBy an order of October 7, 2022 the Judicial Panel on Multidistrict Litigation centralised 27 actions in eleven districts, and 48 potentially related actions, over injuries associated with polyethylene liners of certain Exactech hip, knee and ankle implants, before Judge Nicholas G. Garaufis as MDL No. 3044. The docket, In re Exactech Polyethylene Orthopedic Products Liability Litigation (No. 1:22-md-03044), lists as defendants Exactech, Inc., Exactech U.S., Inc., TPG Capital, TPG Inc., TPG Partners VII, TPG Genpar VII, TPG Genpar VII Advisors, Osteon Holdings, Osteon Merger Sub and Osteon Intermediate Holdings II, among others. On March 22, 2023 the plaintiffs filed an amended master personal-injury complaint against Exactech, Exactech U.S., Osteon Holdings, Osteon Intermediate Holdings II, Osteon Merger Sub and TPG Inc. A plaintiffs' lawyer also described a separate federal suit in the Eastern District of Arkansas (No. 4:22-cv-136) over a Novation Connexion GXL hip liner; that court record is not in the retained material. ^{1 2 3}

analysisTPG Inc. and the Osteon companies moved in June 2023 to dismiss, arguing that the plaintiffs had not adequately pleaded indirect liability, including veil-piercing and successor liability, and on May 30, 2023 the magistrate judge had stayed discovery against them pending the motion. In March 2024 Judge Garaufis granted the motion, dismissing the "TPG Defendants" from all personal-injury actions originally filed in eighteen listed states that had named TPG and its non-Exactech affiliates; the claims against Exactech continued. The decision records the plaintiffs' allegation that Osteon Intermediate Holdings II and Exactech were joint policyholders on a certificate of insurance. The Settlement Trust says TPG had been named with Exactech in several earlier suits, and that Kirkland & Ellis appeared in early March 2023 for the TPG entities but not for Exactech. These are allegations in the Settlement Trust’s pending complaint and have not been adjudicated. ^{2 4 5}

analysisDockets of product-liability suits filed in the Alachua County circuit court in 2022 and 2023 under the Florida master case (No. 2022 CA 002670), including case 2022 CA 2702, name as defendants Exactech, Inc., Exactech U.S., Inc., the packaging supplier Hillman Supply Company, William Petty, Betty Petty, David Petty, Gary Miller, Miller Family Holdings, LLC and Miller Family Holdings, Inc. Hillman answered with affirmative defences and a jury demand in December 2023, and the founders and the Miller family companies moved to dismiss in June 2023. The cases were closed on October 29, 2024 on account of the bankruptcy filed in the Exactech master case. According to the trust, the first bellwether hip trial had been set for December 2024 after fact and expert discovery, and the bankruptcy prevented it. These are allegations in the Settlement Trust’s pending complaint and have not been adjudicated. ^{1 2 3 4}