N. Kirkland Pope

On November 20, 2015, the jury in Robyn Christiansen’s lawsuit against Wright Medical Technology told Judge William S. Duffey Jr. of the Northern District of Georgia that it had reached a verdict. The jurors came back into his Atlanta courtroom, Duffey reviewed the completed form, and he told his courtroom deputy to read it. The first question asked whether Wright’s Conserve hip implant was defectively designed. The deputy read the jury’s answer, no, and Duffey stopped the reading there so that he could examine the form again.

Christiansen was seventy-three and lived in Salt Lake City. She had worked almost fifty years as a ski instructor and had taught children at a resort in Alta, Utah. The Conserve was implanted in her on April 24, 2006. About five days after a sudden pain struck her during yoga, she returned to the operating room on October 29, 2012, to have the loosened, displaced cup of her artificial hip replaced. Dr. Lynn G. Rasmussen cleaned debris from the socket and wrote in his operative note that she showed signs of a metallosis reaction, with an inflamed joint lining. At his deposition he described cloudy, inflammatory fluid and built-up soft tissue inside the joint, consistent with the metallosis he had found in other hips he had revised.

Christiansen’s case was the first of about 440 in the Conserve multidistrict litigation to go to trial, chosen from ten cases the parties had identified as bellwether candidates. N. Kirkland Pope of the Atlanta firm Pope McGlamry, who held a leadership position in the Conserve MDL, led her trial team with his partner Mike McGlamry, Ray Boucher of Boucher LLP, and Helen Zukin of Kiesel Law. His father, Neal Pope, was on the team, with Kim Johnson and Jill Cassert of Pope McGlamry and Cherisse Cleofe of Kiesel Law. Four days after the reading stopped, the jury found the Conserve defectively designed and Wright liable for negligently misrepresenting it, assigned Christiansen no share of the fault, and awarded her $1 million in compensatory damages. In April 2016 Duffey rejected Wright’s arguments that the way the jury reached its verdict, or the evidence behind its liability findings, entitled the company to judgment or a new trial, and in March 2017 the Eleventh Circuit affirmed.

Cobalt-Chromium Against Cobalt-Chromium

The Conserve set a cobalt-chromium femoral ball directly against a cobalt-chromium acetabular cup, leaving out the polyethylene liner that separates those parts in a conventional hip replacement. Christiansen contended that each movement of the joint shed metal debris, more of it the more active the patient, and that the debris caused osteolysis, dissolving the bone that held the cup until the cup worked loose.

Before trial, Wright argued that the revision surgery had produced nothing beyond Rasmussen’s words: no tissue or bone samples, no microscopic study of cells, no pathology tests, histology slides, photographs, or blood-metal measurements. Without them, Wright said, Christiansen’s experts could only speculate about what the surgeon’s words meant. On August 31, 2015, Duffey rejected that argument as to Rasmussen’s observations. An experienced treating physician’s observations are especially reliable, he wrote, because they record a patient’s medical history and guide her treatment throughout her life, and doctors and researchers rely on them to diagnose disease, choose treatment, and compare injuries across patients. Qualified experts could build their opinions on what Rasmussen saw.

Utah law governed her claims, and Duffey’s pretrial rulings set what the jury would hear about Wright’s history with the device. He allowed evidence of metallosis that had been observed or verified through an accepted testing method before Christiansen’s 2006 surgery, reported to Wright, and caused by a Conserve implant. He allowed Rasmussen to testify about what he saw during the revision and about his experience with metallosis. Over Wright’s objection that the orthopedic surgeons Christiansen proposed to call were undisclosed experts biased against the device, he allowed two of them to testify about what they had expected of the Conserve: under Utah law a design is defective if it is more dangerous than its ordinary consumer would contemplate, and the parties agreed that the Conserve’s ordinary consumers were orthopedic surgeons.

Two Verdict Forms

Trial had opened on November 9. The form the jurors brought back on November 20 did not fit together: after answering no to the first question, whether the Conserve was defectively designed, they had kept going, finding that Wright made negligent misrepresentations, awarding compensatory and punitive damages, and assigning part of the fault to Christiansen. Duffey gave the jurors a clean copy of the form and sent them back to read it aloud and decide whether they had completed it correctly. When they reported that they did not understand the form, he rewrote its instructions after conferring with counsel, recharged the jury on the law in full, and gave them the supplemented form.

The jurors deliberated for two more days. On the second, one juror wrote that deliberations were taking an “extensively long time as one of the jurors doesn’t look at the evidence through the perspective of the law,” and the foreperson wrote that one juror had decided no longer to participate. Duffey questioned that juror in chambers, with a lawyer for each side present. Asked whether there was an instruction about which he could say, “I have to do that, but I’m not willing to do that,” the juror answered, “Yes. Yes.” Asked whether his position was that he knew what an instruction said but could not agree with it because he thought it would lead to the wrong result, he answered, “Yes, sir.” Counsel for both sides agreed that he could not follow the instructions, and on November 24 Duffey excused him. About half an hour later the remaining jurors reported a verdict. This time they found the Conserve defectively designed and unreasonably dangerous and Wright liable for negligent misrepresentation, assigned Christiansen no share of the fault, and awarded $550,000 on the design claim and $450,000 on the misrepresentation claim. They also found, by clear and convincing evidence, that Wright’s misrepresentations manifested a knowing and reckless indifference toward the rights of others, including Christiansen, a finding on which Utah law permits punitive damages. The poll of the jurors confirmed the verdict, and on December 2, 2015, Duffey entered judgment for Christiansen.

Wright’s renewed motion led with the first form. The jury’s original answer that the hip was not defectively designed, Wright argued, entitled it to judgment as a matter of law; the change between the two forms showed a confused or biased jury; and the court had excused a juror without good cause. On April 5, 2016, Duffey rejected all three arguments. Federal Rule of Civil Procedure 49(b)(4) permits a judge who receives inconsistent answers on a verdict form to direct the jury to consider them further, and the original answers were inconsistent because the jurors had misunderstood the form’s instructions. A change in answers after resubmission will usually be considered a proper correction of a mistake, he wrote, adopting the Ninth Circuit’s formulation, and he found that the jurors had deliberated responsibly over two more days and corrected their own error, without confusion or bias. A juror who refuses to follow the court’s instructions may be excused for good cause, and this juror had refused.

What Wright Told Rasmussen

Wright also challenged the liability findings themselves. Its comment k defense, which can shield an unavoidably unsafe product from strict liability for its design, required Wright to prove that the hip came with proper directions and warnings; the jury found that it had not, and Duffey held that comment k demands that proof. On negligent misrepresentation, Rasmussen had testified that in 2005 and early 2006, before he discussed the device with Christiansen, Wright employees Patrick Fisher and Irina Timmerman told him that Wright had treated its A-Class metal to a hardness comparable to ceramic, giving it much lower wear than typical cobalt-chromium and fewer metal ions. Wright, he testified, presented the hip as the one for the very active patient, “who bikes, who hikes, who skis, who does yoga.” Joel Batts, a former Wright employee, testified that the company had done no testing of whether an active lifestyle produced greater wear. Fisher acknowledged that Wright knew of studies showing that more activity meant more metal wear and ion release, and that its promotional materials showing active patients said nothing about it. Michael Carroll, Wright’s vice president of implant technology, had co-authored a 2005 document observing that metal-on-metal bearings generated large numbers of wear particles, that those particles were responsible for most of the metal ions released into blood and tissues, and that the clinical implications of the elevated ion levels had “yet to be understood.”

Duffey held that Wright’s statements were representations of fact about the device’s design, its metal’s hardness, and its metal-ion risk, made to surgeons deciding what to implant in their patients, and rejected Wright’s argument that they were puffery; the jury could find them false and negligently made. Wright conceded that the jury could find it knew the risks. Duffey held that the evidence also allowed the jury to find that Wright kept promoting the hip to surgeons as right for active patients while lacking the knowledge to support its claims, conduct manifesting a knowing and reckless indifference, and that Utah law allows punitive damages for negligence of that kind. He declined to reduce the $1 million in compensatory damages. Christiansen had testified that after the device failed she “had to have surgery. Otherwise I would never walk again, basically.” Her friend and former co-worker Ute Fowler testified that Christiansen, once a fearless skier on steep terrain, could not ski in the first year after the revision and now kept mostly to easy and intermediate runs.

The Eleventh Circuit Reads the First Form

Wright appealed. On March 20, 2017, an Eleventh Circuit panel of Judges Wilson and Jill Pryor and District Judge Bartle affirmed Duffey’s order denying Wright’s motion. The panel held that the answers on the original verdict sheet were inconsistent. “It is apparent from these contradictory and irreconcilable responses that the jury did not understand the instructions,” the court wrote, and “it was not an abuse of discretion for the district court to order the jury to continue deliberating.” Wright had argued that the way Duffey handled the first form biased the jury toward Christiansen. “From a review of the record, the district court acted in a neutral and non-biased manner,” the court answered. As for the excused juror, Wright had not objected to his dismissal at trial, and it had “offered no persuasive reason why this dismissal tainted jury deliberations.”

Wright’s other main argument concerned comment k. It had wanted the jury told that comment k barred strict liability for the hip’s design as a matter of law. The Utah Supreme Court had adopted that categorical bar in Grundberg v. Upjohn in 1991 for pharmaceutical drugs approved by the Food and Drug Administration, and it had emphasized that “[n]o other class of products is subject to such special restrictions or protections in our society.” Even if Utah extended the bar to FDA-approved medical devices, the Eleventh Circuit predicted, it would not reach the Conserve, because the record was silent on whether the hip had FDA approval; at oral argument Wright conceded that it had presented no evidence at trial that it did. “On this record,” the court held, “any categorical bar to liability for an unavoidably unsafe product was not available to Wright Medical.” Wright asked the full court to rehear the case, arguing that the panel had erred on comment k for devices cleared through the FDA’s 510(k) process. On May 18, 2017, the Eleventh Circuit denied rehearing, and no judge in regular active service asked for a poll.

The Utah Supreme Court took up the comment k question two years later in another Wright metal-hip case. Dale Burningham had metal-on-metal Conserve components in both hips and a Profemur modular neck in his left, and he alleged that the parts failed and that he needed several revision surgeries; his lawyers included George E. McLaughlin of Denver. Judge Jill N. Parrish of the federal court in Utah certified questions to the state court, and on September 5, 2019, in an opinion by Justice Petersen for all five justices, the court answered that the unavoidably unsafe exception is an affirmative defense decided case by case. The FDA does not evaluate devices that enter the market through the 510(k) process for safety and efficacy, the court explained: “Accordingly, we cannot know whether the device is safe, incapable of being made safe, or unreasonably dangerous.” The exception might shield some implanted devices, but for one cleared through 510(k), the court could not say that it always would as a matter of law.

Neal Pope’s Son

Neal Pope graduated from Auburn University in 1961 and served as a Marine Corps officer; in October 1962, as a lieutenant, he commanded a Marine platoon aboard the USS Thuben during the blockade of Cuba. He took his law degree at the University of Alabama in 1966 and in his first ten years of practice tried over a hundred jury trials to verdict. In 1984 Max McGlamry and two other lawyers joined his practice, the beginning of the firm that became Pope McGlamry.

His son followed the same route. Kirk Pope graduated from Auburn University in 1992 with a degree in finance and accepted a commission in the United States Marine Corps the same year, serving as an infantry officer with the Second Marine Division and the Fourth Marine Division. He received his law degree from the University of Alabama in 2001. In 2003 he deployed with part of the Marine Corps Reserves to Wasit Province, Iraq, in Operation Iraqi Freedom. He joined Pope McGlamry in 2006 and practices from its Atlanta office. On April 26, 2011, at the Supreme Court of the United States, Neal Pope moved his son’s admission to the Court’s bar, and Chief Justice John G. Roberts granted the motion. Kirk Pope is admitted in Alabama and Georgia, in the federal district courts of both states, in the Third and Eleventh Circuits, and in the Supreme Court of the United States.

Profemur Necks, Tennessee Coordinations, and an Arkansas MDL

Christiansen’s hip had combined a Conserve Plus cup and a Conserve A-Class head with a Wright Profemur stem and Profemur neck, and Burningham’s left hip held a Profemur neck too. The Profemur claims alleged failure at a different point, where that neck met the stem. The Profemur family used a separate modular neck that seated in a bore in the femoral stem, offered in titanium and, from 2009, in cobalt-chromium, with the same taper, bore, and junction tolerances across the line. The separate neck let surgeons choose its size and angle for each patient. Plaintiffs alleged that the neck micromoved inside the bore, letting fluid into the junction, and that the fretting and corrosion that followed caused metallosis and elevated blood-metal levels and sometimes fractured the device.

Bradley Little, a physical education teacher in Arizona, was leading a class down a hallway in 2017 when the Profemur neck in his right hip snapped. “It looked like a laser went through it,” he later told reporters. About four years later, teaching on a tennis court, he felt a sensation in his left leg like crushing an aluminum can; the second neck had broken. He sued Wright, which denied liability and settled. Wright’s answer in court was that a fracture did not prove a defect. “A device fracture does not mean it is defective,” its lawyer Tiffany Carpenter told a federal court in 2018. “Devices fracture all the time.” Wright’s count in court was 768 fractures among about 353,000 Profemur necks sold. FDA documents put the U.S. fracture rate of the necks permanently recalled in 2020 at 2.2 percent, eleven times the rate described in court. MicroPort had recalled one cobalt-chromium size in 2015 and recalled ten titanium sizes in 2020; that year it also briefly recalled every available Profemur modular neck, lifting the recall after it updated the packaging documents.

Plaintiffs asserted that every Profemur component had been made at Wright’s plant in Arlington, Tennessee, which MicroPort Orthopedics later bought. In May 2014 Profemur plaintiffs asked the Circuit Court of Shelby County, Tennessee, to coordinate their cases under its Local Rule 28, and on January 13, 2015, the court approved coordinated pretrial proceedings, with Judge Robert S. Weiss as coordinating judge for discovery, the only coordinated Profemur litigation in the country at the time. By 2020 three dockets of Profemur claims—titanium necks, cobalt-chromium necks against Wright, and cobalt-chromium claims against MicroPort—were being coordinated in Shelby County. By the end of 2020 Pope and George E. McLaughlin of Warshauer McLaughlin Law Group were serving as co-lead counsel in those Tennessee coordinations.

Federal cases accumulated as well: forty-one actions in twenty-five districts, with twenty-one more potentially related. Plaintiffs asked the Judicial Panel on Multidistrict Litigation to send them to one judge. MicroPort and Wright opposed, arguing that the cases shared too few factual questions, that informal cooperation among counsel would work, and that their differing procedural stages would make centralization inefficient. On August 7, 2020, the Panel centralized the cases before Judge Kristine G. Baker in the Eastern District of Arkansas, finding common questions of fact and holding that plaintiff-specific causation issues, which arise in almost all personal-injury litigation, do not prevent centralization where common questions predominate. It chose the Eastern District of Arkansas in part because the district sits near the defendants’ Memphis headquarters, where documents and witnesses could be found.

On December 7, 2020, Baker appointed Pope and McLaughlin plaintiffs’ co-lead counsel for the MDL. Her order gave the reason in one sentence: “Mr. McLaughlin and Mr. Pope currently serve as co-lead counsel in the Tennessee State Court Coordinations and have experience litigating Profemur related claims.” It charged them to initiate, coordinate, and conduct all discovery for the plaintiffs, including joint interrogatories, document requests, and depositions; to consult with and employ experts; to conduct pretrial settlement negotiations on behalf of all plaintiffs; and to direct and supervise the pretrial preparation of the plaintiffs’ claims. Apart from a few exceptions, such as appearances, remand motions, and responses to defense motions in individual cases, no other plaintiff’s lawyer could file papers, raise arguments with the court, or begin discovery except through the co-leads or their designees unless the court granted relief. Baker made the appointment personal: Pope could delegate tasks, but they had to remain under his supervision and responsibility. She named Paul James of James & Carter in Little Rock as liaison counsel and Murray Wells of Wells and Associates as liaison counsel to the Tennessee state courts. At Pope McGlamry, M.J. Blakely and Josh Karr worked with Pope on the litigation.

After a status conference in March 2021 on competing discovery schedules, Baker ordered on April 6 that the parties finish negotiating by April 30 how discovery already taken in earlier Profemur litigation would be used. By May 7 they were to propose plaintiff and defendant fact sheets and a schedule running from the plaintiffs’ search terms for Wright’s and MicroPort’s electronic files through the companies’ lists of document custodians, their first productions, the plaintiffs’ interrogatories and document requests, and depositions, including corporate depositions under Rule 30(b)(6). Pope has also held a leadership position in the claims over the Dynasty modular hip implant, coordinated in California state court as JCCP 4710.

Exactech Polyethylene in Out-of-Specification Bags

Where the Conserve eliminated the polyethylene liner, Exactech’s knee, hip, and ankle implants depended on polyethylene components, among them the ultrahigh-molecular-weight polyethylene tibial inserts in its Optetrak and Truliant knees and the liners in its hip systems. On August 30, 2021, Exactech notified distributors and sales representatives of a recall of knee and ankle polyethylene inserts packaged in vacuum bags that lacked an oxygen-barrier layer. An urgent medical device correction letter on February 7, 2022, told health care professionals that most of its knee and ankle inserts made since 2004 had been packaged in out-of-specification bags that could allow increased oxygen diffusion; over time, oxidation can degrade the polyethylene. The hip recalls began in June 2021 with a warning to surgeons about premature wear in Connexion GXL liners and a recall of systems implanted from 2015 through 2021; on August 11, 2022, Exactech extended the recall to all Connexion GXL, Acumatch, MCS, and Novation hip systems, reaching liners implanted since 2004. The claims involved roughly 200,000 hip, knee, and ankle devices.

On February 11, 2022, Pope McGlamry sued Exactech in the Eastern District of Arkansas for a patient who had received a Novation Crown Cup with a Connexion GXL liner in a total hip replacement in September 2013. Less than eight years later the patient had pain and severe osteolysis, the bone loss Christiansen had attributed to metal debris, and needed revision surgery. The complaint alleged that Exactech had negligently misrepresented a 59 percent reduced wear rate for the liner and that it had “enhanced polyethylene” with a lower wear rate.

The plaintiffs’ master complaint alleged that Exactech’s manufacturing and packaging processes left its implants more reactive to the environment and susceptible to oxidative stress, so that the polyethylene wore prematurely, the implants loosened and failed, and patients suffered severe pain, swelling, and tissue destruction before undergoing revision surgery to remove and replace them. It alleged that Exactech had known since 2008 that its polyethylene products were wearing prematurely and kept selling them.

By October 2022 seventy-five federal Exactech suits were pending, twenty-six of them in the Eastern District of New York. Exactech agreed that one court should hear them but asked the Judicial Panel on Multidistrict Litigation to send them elsewhere, suggesting the Southern District of New York among other districts. Pope McGlamry’s Courtney L. Mohammadi argued for consolidation at the Panel’s September hearing. On October 7, 2022, the Panel centralized the federal cases before Judge Nicholas G. Garaufis in the Eastern District of New York, as MDL 3044, describing the district as relatively underutilized for multidistrict litigation.

On November 29, 2022, Pope and Ellen Relkin of Weitz & Luxenberg wrote to Garaufis proposing that they serve as co-lead counsel, citing their experience in hip implant MDLs. In December 2022 Garaufis appointed Pope and Relkin plaintiffs’ co-lead counsel, with Rayna E. Kessler of Robins Kaplan as liaison counsel and Joseph H. Saunders as federal-state liaison counsel; Mohammadi joined the discovery committee. At the time of the appointments, nearly 200 lawsuits had been filed in the MDL and in consolidated proceedings in Florida, where Exactech is based. “We are underway and expect to move quickly in getting to the answers of how this happened and why,” Pope said.

In January 2023 Garaufis signed a stipulated order letting patients file directly in the MDL, with a directly filed complaint stopping the running of any statute of limitations even if the district court named in the complaint was later found to lack personal jurisdiction or venue over the defendants. The docket grew from 373 plaintiffs at the end of May 2023 to 1,090 filings in January 2024 and 1,770 by October 2024.

Five Meet-and-Confers, Then Delaware

On September 27, 2023, Pope and Relkin wrote as co-lead counsel to Magistrate Judge Marcia M. Henry that after five meet-and-confers the parties were at an impasse over three categories of documents. Exactech, they told her, had not finished reviewing the 123,321 documents from twelve custodians that it had been ordered to produce; on September 22 it had produced 17,269, “a fraction of what it was ordered to produce,” and it had not asked the court for relief.

Each category, the plaintiffs argued, bore on what Exactech knew about the risks of its products. Most of its hip and knee devices, including the components in the litigation, had been sold abroad, and they asked for its foreign regulatory files, which they said bore on adverse events, failure rates, and the timing of design and marketing changes. They asked for the testimony, exhibits, and expert reports from earlier suits over Optetrak knee and hip-liner failures, two of them filed in 2020, before the recalls, by plaintiffs now in the MDL, and for the files of a whistleblower suit over Exactech’s Optetrak finned tibial tray, which they said showed how Exactech had answered surgeons, blamed failures on surgical technique, and failed to report revisions. And they asked for the due diligence documents from the Exactech-TPG merger, which they said held what Exactech had shared with TPG about manufacturing and design concerns and polyethylene degradation before the later recall.

Garaufis set the first bellwether trials for 2025; by the end of October 2024 the first two were scheduled to begin on September 29 and November 10, 2025. Exactech filed a Chapter 11 bankruptcy petition on October 29, 2024, and on November 1 Garaufis stayed the proceedings; the MDL held 1,839 cases by December. In September 2025 Judge Laurie Selber Silverstein of the bankruptcy court in Wilmington, Delaware, cleared Exactech to leave Chapter 11 and approved its sale to a lender group led by Strategic Value Partners and Stellex Capital Management, under a plan that set up a trust to pursue litigation claims for unsecured creditors, among them thousands of patients who said Exactech’s implants had injured them. The deadline for patients to submit claim forms in the bankruptcy has since passed.

On September 16, 2025, the United States Attorney’s Offices in Maryland and the Northern District of Alabama announced that Exactech would pay $8 million, an amount based on its financial condition and approved by the bankruptcy court, to settle two whistleblower suits under the False Claims Act, without any determination of liability. The government alleged that Exactech had caused false claims to Medicare, Medicaid, and the Department of Veterans Affairs for defective knee components: that it knew by January 2008 that its finned tibial tray failed prematurely at a higher than acceptable rate and kept selling it through 2018, and that it knew by January 2019 that the polyethylene in certain Logic and Truliant knee systems failed prematurely at a higher than acceptable rate and kept selling those systems until February 7, 2022, the day its correction letter went to health care professionals.