Opinion
Civ. No. 06-135, MDL No. 1763.
December 10, 2008
ORDER
PURSUANT TO the Court's Memorandum Opinion and Order dated October 22, 2008 and in accordance with the application of that Memorandum Opinion and Order to each individual plaintiff who alleges that he or she received tissue recovered by BioMedical Tissue Services, Ltd. ("BTS") and whose case is now pending in this MDL ("Recipient Plaintiffs"),
IT IS on this 9th day of December, 2008, hereby,
ORDERED that Defendants are entitled to judgment as a matter of law, and judgment is entered in favor of Defendants as follows:
Recipient Plaintiffs Whose Tissue Was Kept at Room Temperature For Thirty or More Days
(1) Recipient Plaintiffs who received bone tissue, bone paste, or other forms of tissue stored at room temperature for thirty (30) days or more have failed to establish general causation on any claims involving the transmission of HIV, HBV, HCV, syphilis, and cancer from such bone tissue, bone paste, or other forms of tissue; and
(2) Recipient Plaintiffs who were implanted with tissue that was kept at room temperature for thirty (30) or more days prior to implantation are listed in Exhibit "A," reflecting the days at room temperature; and
(3) the Complaints and any and all claims of these Recipient Plaintiffs are DISMISSED WITH PREJUDICE AND A FINAL JUDGMENT IS ENTERED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56 AND/OR 54(B); and
(4) dismissal on this ground does not waive Defendants' defense that certain Recipient Plaintiffs, who are identified in Exhibit "A" as "Non-BTS," lack standing to bring suit because they received tissue that was not recovered by BTS.
Recipient Plaintiffs Who Tested Negative For Certain Diseases Six Months Or More After Implant Surgery
(1) Recipient Plaintiffs who have tested negative for HBV, HCV, HIV, and syphilis six (6) months or more after his or her bone tissue, bone paste, or other form of tissue transplant surgery cannot establish general causation with respect to HBV, HCV, HIV, and syphilis; and
(2) Recipient Plaintiffs who have tested negative for these diseases six (6) months or more after his or her date of implant surgery are listed in Exhibit "B," reflecting the negative results; and
(3) the Complaints and any and all claims of these Recipient Plaintiffs are DISMISSED WITH PREJUDICE AND A FINAL JUDGMENT IS ENTERED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56 AND/OR 54(B); and
(4) dismissal on this ground does not waive Defendants' defense that certain Recipient Plaintiffs lack standing to bring suit because these Recipient Plaintiffs have not provided adequate tissue identification information ("TIN") to conclude that the implanted tissue was tissue actually recovered by BTS and/or processed or distributed by any named defendant (identified in Exhibit "B" as "No TIN" or non-verifiable TIN ("Non-V")), or these Recipient Plaintiffs received tissue that was not recovered by BTS (identified in Exhibit "B" as "Non-BTS").
Recipient Plaintiffs Who Have Any Claims Involving The Transmission Of Prion Disease
(1) Recipient Plaintiffs who received bone tissue, bone paste, or other forms of tissue have failed to establish general causation on any claims involving the transmission of prion disease from such bone tissue, bone paste, or other forms of tissue; and
(2) to the extent that Recipient Plaintiffs listed in Exhibit "A" and/or "B" assert claims involving the transmission of prion disease, those claims are DISMISSED WITH PREJUDICE AND A FINAL JUDGMENT IS ENTERED PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56 AND/OR 54(B).
Recipient Plaintiffs Who Have Affirmatively Pled An Additional Claim Of Bone Failure Or Bacterial Infection
(1) A limited number of Recipient Plaintiffs identified in Exhibit "A" and/or "B" have affirmatively pled an additional claim of "bone failure" or bacterial infection; and(2) these claims of bone failure or bacterial infection were not the subject of this Court's Memorandum Opinion and Order dated October 22, 2008; and
(3) to the extent that a Recipient Plaintiff has affirmatively pled a claim of "bone failure" or bacterial infection, THOSE CLAIMS ALONE ARE NOT DISMISSED, BUT RATHER ADMINISTRATIVELY STAYED; and
(4) pursuant to Federal Rule of Civil Procedure 54(b), for those Complaints, which have presented more than one claim for relief and include a claim for "bone failure" or bacterial infection, or involve multiple plaintiffs, this Court expressly determines that there is no just reason for delay in permitting Recipient Plaintiffs to appeal from the Final Judgments as entered given that: (a) the claims involving bone failure and bacterial infection are distinct and independent claims from those claims involving HIV, HBV, HCV, syphilis, cancer, and prion diseases; (b) future developments in this Court will not moot any issues that may require review upon appeal, if any; (c) the issues decided by the Court are dispositive of all of Recipient Plaintiffs' claims involving HIV, HBV, HCV, syphilis, cancer, and prion diseases and will not require a second review; (d) Recipient Plaintiffs' claims cannot be "set-off" against judgments on any remaining claims; and (e) most importantly, the claims made final by the Court's Memorandum Opinion and Order of October 22, 2008 constitute the vast majority of claims in this multidistrict litigation, and a resolution on these claims will advance the goals of multidistrict litigation courts, including the conservation of judicial resources, the reduction of expenses incurred by the litigating parties, and the efficient and just resolution of the litigation.
Exhibits A and B