Opinion
C.A. No. 4:01-429, Docket No. 1401.
April 8, 2002
BEFORE WM. TERRELL HODGES, CHAIRMAN, JOHN F. KEENAN, MOREY L. SEAR, BRUCE M. SELYA, JULIA SMITH GIBBONS, D. LOWELL JENSEN AND J. FREDERICK MOTZ, JUDGES OF THE PANEL
TRANSFER ORDER
Before the Panel are motions brought, pursuant to Rule 7.4, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001), by plaintiffs in one District of Arizona action and two Central District of California actions. They move the Panel to vacate its order conditionally transferring the actions to the Northern District of Ohio for inclusion in the centralized pretrial proceedings occurring there in this docket before Judge Kathleen McDonald O'Malley.
On the basis of the papers filed and hearing session held, the Panel finds that these actions involve common questions of fact with actions in this litigation previously transferred to the Northern District of Ohio, and that transfer of the actions to that district for inclusion in the coordinated or consolidated pretrial proceedings occurring there will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The Panel is persuaded that transfer of the actions is appropriate for reasons expressed by the Panel in its original order directing centralization in this docket. The Panel held that the Northern District of Ohio was the proper Section 1407 forum for actions brought by persons allegedly injured by defective hip implants manufactured and distributed by common defendant Sulzer Orthopedics Inc. (Sulzer). See In re Inter-Op Hip Prosthesis Products Liability Litigation, 149 F. Supp.2d 931 (J.P.M.L. 2001).
This litigation was originally entitled In re Inter-Op Hip Prosthesis Products Liability Litigation. Subsequent to the Panel's initial order of transfer, the transferee court ordered the name of the litigation changed to reflect the expansion of the litigation to include claims involving another product line of defendant Sulzer, its knee implants. Purportedly, certain of these knee implants suffered aseptic loosenings similar in nature to what had occurred with the Sulzer hip implants subject to suit. In accordance with the transferee court's determination, the Panel entered its own name change order on Nov. 2, 2001.
Plaintiffs premise their opposition to transfer on jurisdictional objections. Plaintiff in the Arizona action asks the Panel, improperly, to itself order remand of her action to state court; and the plaintiffs in the California actions urge the Panel not to order transfer before their complaints can be amended (to add a nondiverse defendant) and their subsequent remand motions can be resolved by the transferor court. We note, however, that remand matters can be presented to and decided by the transferee judge. See, e.g., In re Ivy, 901 F.2d 7 (2nd Cir. 1990); In re Air Crash Disaster at Florida Everglades on December 29, 1972, 368 F. Supp. 812, 813 (J.P.M.L. 1973).
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, these three actions are transferred to the Northern District of Ohio and, with the consent of that court, assigned to the Honorable Kathleen McDonald O'Malley for inclusion in the coordinated or consolidated pretrial proceedings occurring there in this docket.