Opinion
MDL No. 2197
08-09-2011
In re: DePUY ORTHOPAEDICS, INC., ASR HIP IMPLANT PRODUCTS LIABILITY LITIGATION
I hereby certify that this instrument is a true and
correct copy of the original on file in my office.
Attest: Geri M. Smith, Clerk
U.S. District Court
Northern District of Ohio
By: Victoria Kirkpatrick
Deputy Clerk
TRANSFER ORDER
Before the Panel: Pursuant to Panel Rule 7.1, plaintiffs in 22 actions listed on Schedule A move to vacate our orders that conditionally transferred their respective actions to MDL No. 2197. Defendants DePuy Orthopaedics, Inc.; Johnson & Johnson; and other defendants appearing in fewer than all actions oppose the motions.
Judge Paul J. Barbadoro and Marjorie O. Rendell took no part in the decision of this matter.
DePuy, Inc.; Johnson & Johnson International; Michael Chad Alberson; M. Chad Alberson, LLC; Commonwealth Surgical Solutions, Inc.; DC Medical, LLC; MJW Orthopedics, LLC; Michael J. Wright; Ted Fox; C.J. George; Michael T. Kimberl; and Jonathon McDaniel.
After considering all argument of counsel, we find these actions involve common questions of fact with the actions previously transferred to MDL No. 2197, and that transfer will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. Moreover, transfer is warranted for reasons set out in our order directing centralization. In that order, we held that the Northern District of Ohio was an appropriate Section 1407 forum for actions sharing factual questions arising from alleged injuries from DePuy's recalled ASR XL Acetabular Hip System. See In re DePuy Orthopaedics, Inc., ASR Hip Implant Prods. Liab. Litig., 753 F.Supp.2d 1378 (J.P.M.L. 2010). These actions all involve injuries from implantation of DePuy ASR hip implants, and clearly fall with the MDL's ambit.
None of the plaintiffs dispute that their actions share questions of fact concerning ASR hip implants with actions pending in MDL No. 2197. Plaintiffs instead base their arguments against transfer primarily on the pendency of motions to remand their respective actions to state court. Plaintiffs in these actions can present their motions for remand to the transferee judge. See, e.g., In re Ivy, 901 F.2d 7 (2nd Cir. 1990); In re Prudential Ins. Co. of Am. Sales Practices Litig., 170F.Supp.2d 1346, 1347-48 (J.P.M.L. 2001).
Plaintiffs in the Northern District of Texas and Eastern District of Virginia actions argue that the defendants made improper arguments in support of their motions to stay district court proceedings in their respective transferor courts (and in other cases), which potentially delayed resolution of plaintiffs' motions to remand to state court. Plaintiffs' concerns about defendants' arguments are more appropriately presented to the transferor court before which the motion to stay is pending. Regardless, Panel Rule 2.1(d) expressly provides that the pendency of a conditional transfer order does not limit the pretrial jurisdiction of the court in which the subject action is pending. Between the date a remand motion is filed and the date that transfer of the action to the MDL is finalized, a court wishing to rule upon the remand motion generally has adequate time in which to do so.
IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. § 1407, these actions are transferred to the Northern District of Ohio and, with the consent of that court, assigned to the Honorable David A. Katz for inclusion in the coordinated or consolidated pretrial proceedings.
PANEL ON MULTIDISTRICT LITIGATION
John G. Heyburn II
Chairman
Kathryn H. Vratil
Frank C. Damrell, Jr.
W. Royal Furgeson, Jr.
Barbara S. Jones
IN RE: DePUY ORTHOPAEDICS, INC., ASR HIP IMPLANT PRODUCTS LIABILITY LITIGATION
MDL No. 2197
SCHEDULE A
Eastern District of Arkansas Penny Nichols v. DePuy Orthopaedics, Inc., et al, C.A. No. 3:11-00080
Northern District of Georgia Linda McClure, et al. v. DC Medical, LLC, et al., C.A. No. 1:11-00877 A. Joann McDowell v. DC Medical, LLC, et al., C.A. No. 1:11-00939 Harold Williams v. DC Medical, LLC, et al, C.A. No. 1:11-00940 Matthew Bailey, et al. v. DC Medical, LLC, et al, C.A. No. 1:11-01169 Deborah Brannon v. DC Medical, LLC, et al., C.A. No. 1:11-01170 Zina Finley v. DC Medical, LLC, et al., C.A. No. 1:11-01171 James Lewis, et al. v. DC Medical, LLC, et al, C.A. No. 1:11-01172 Bobby Gallimore, et al. v. DC Medical, LLC, et al., C.A. No. 1:11-01173 Dennis Wilson v. DC Medical, LLC, et al., C.A. No. 1:11-01174 Nicole Askew v. DC Medical, LLC, et al, C.A. No. 1:11-01245
Western District of Kentucky Larry G. Johnson, et al. v. DePuy Orthopaedics, Inc., et al, C.A. No. 5:11-00045 Terry Carnes v. DePuy Orthopaedics, Inc., et al., C.A. No. 5:11-00046 Gary Lee McElwayne, et al. v. DePuy Orthopaedics, Inc., et al., C.A. No. 5:11-00047 Linda Lacey v. DePuy Orthopaedics, Inc., et al, C.A. No. 5:11-00048 Lisa F. Humphrey v. DePuy Orthopaedics, Inc., et al, C.A. No. 5:11-00049 Derla Thomas v. DePuy Orthopaedics, Inc., et al, C.A. No. 5:11-00050 Steve Kimbro, et al. v. DePuy Orthopaedics, Inc., et al., C.A. No. 5:11-00051 Michael Bryson, et al. v. DePuy Orthopaedics, Inc., et al., C.A. No. 5:11-00052
District of Nevada Jack Day, et al. v. DePuy Orthopaedics, Inc., et al., C.A. No. 2:11-00501
Northern District of Texas Mary Banks, et al. v. DePuy Orthopaedics, Inc., et al., C.A. No. 3:11-00718
Eastern District of Virginia Louis Michael Zaborsky, II v. DePuy Orthopaedics, Inc., et al., C.A. No. 3:11-00251