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Brett Emison
Brett Emison
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Zimmer Tactics On NexGen CR-Flex Artificial Knees Exposed In Bloomberg Article

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I was pleased to be quoted in a Bloomberg article yesterday by reporters Alex Nussbaum and David Voreacos exposing Zimmer’s intimidation and bullying tactics against those speaking out regarding alleged defects in Zimmer’s NexGen CR-Flex replacement knee.

In January of this year, I wrote a short piece entitled Surgeons Urge Recall Of Zimmer NexGen Knee Replacements. In the post, I meticulously cited and linked to each source in support of the factual reporting and commentary contained in the post. By the time my post went live, many others (a Google search indicated thousands) had written about reports of problems with the Zimmer NexGen CR-Flex artificial knee (including the New York Times and even Senator Chuck Grassley (R-IA)).

A few weeks later, I received a surprising fax from Zimmer’s national counsel. Zimmer’s counsel accused me of "alarmist fear mongering" (among other things). One of Zimmer’s primary complaints was that I had originally written that Dr. Berger’s study identifying problems with the Zimmer NexGen CR-Flex artificial knees found a failure rate of 9% (which at the time I published the post had been reported more than 10,000 online — according to Google search results — including a report by the New York Times). Following Zimmer’s letter, however, I amended my post to reflect the more accurate number identified to me by Zimmer as an 8.3% (9 out of 108) failure rate.

I wasn’t the only person to receive a letter from Zimmer. Zimmer sent similar letters to lawyers across the country and even sued 7 law firms earlier this year. According to Bloomberg, law professor David Logan called Zimmer’s actions "unusually aggressive", saying "[i]t’s like putting a loaded gun on the table for negotiations."

"The strategic choice of attacking attorneys for minor inaccuracies is so counter-effective," said Davis. "Now at the Zimmer NexGen seminars, which are taking place all over the country, they’re actually attracting more attorneys. Many plaintiffs’ lawyers believe it has attracted more attention."

Bloomberg

Zimmer faces a high burden of proof in its lawsuits, as commentary on Zimmer’s products is permitted so long as it is not "provably false or misleading," said Logan in the Bloomberg article. Zimmer, through a spokesperson, suggested that it even welcomed truthful commentary and "legitimate discussion based on fact."

Tellingly, Zimmer did not raise any concerns in its letter to me regarding a number of facts that have been reported by various outlets, including:

  • Dr. Berger’s study found an 8.3% revision requirement for NexGen CR-Flex Porous Femoral component patients for femoral loosening and pain (source; source; Zimmer’s own letter)
  • Zimmer marketed and sold its knee replacement devices to the public without any testing in patients (source)
  • Senator Chuck Grassley (R-IA) is investigating Zimmer’s response to Dr. Berger’s study and how Zimmer has tracked long-term performance of its orthopedic devices (source)
  • Zimmer paid Dr. Berger more than $8 million in the last 10 years (source)
  • Zimmer’s chief scientist previously praised Dr. Berger as having "a very clever set of hands… with the ability to innovate surgical techniques." (source)

Zimmer’s letter made a thinly veiled threat of litigation alleging that my post may violate certain unidentified laws. I responded to Zimmer asking if it contended that my post actually did violate any laws and, if so, to identify such laws so I could make a reasonable determination if a change or retraction should be made. I never heard back.

Zimmer has apparently targeted attorneys, doctors and safety advocates who dare raise concerns about its products without turning the same critical eye to members of Congress and established media outlets like the New York Times. Zimmer’s selective attacks may betray its true intentions and suggest that Zimmer is not as concerned with what is reported so much as it is with who is doing the reporting.

Bloomberg reported there are currently at least "78 lawsuits over Zimmer’s NexGen Flex artificial knees". Perhaps if Zimmer was as concerned about product quality, safety, and testing as it was about intimidation tactics and stifling speech, it could have avoided this problem in the first place.

I, along with many others writing about safety and legal topics, intend to continue reporting and commenting on truthful facts concerning Zimmer or any other corporation or person as I am rightfully entitled to do as a citizen of the United States. Truth is a complete defense to Zimmer’s allegations.

More on this story:

[More on Zimmer Knee Problems]

(c) Copyright 2011 Brett A. Emison

2 Comments

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    Great article and a rallyng call to attorneys to stand up to corporate bullying while at the same time being truthful and responsibile to the laws that we have pledged to uphold. You did a great job of exposing this story for attorneys and for the public.

  2. Brett Emison says:
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    Wayne – Thanks for your kind words.