In Re Inter-Op Hip Prosthesis Products Liability Litigation

149 F. Supp. 2d 931, 2001 U.S. Dist. LEXIS 8856, 2001 WL 716126

• Court: United States Judicial Panel on Multidistrict Litigation
• Decided: June 19, 2001
• Docket: MDL 1401
• Status: Published

Opinion

TRANSFER ORDER

WILLIAM TERRELL HODGES, Chairman.

Before the Panel are three motions, pursuant to 28 U.S.C. § 1407, collectively-seeking centralization at this time of the 30 actions listed on the attached Schedule A and pending in thirteen districts as follows: eleven actions in the Central District of California; four actions in the Northern District of Ohio; two actions each in the Northern District of California, the Southern District of Florida, the Eastern District of Michigan, and the Eastern District of New York; and one action each in the Northern District of Illinois, the Eastern District of Louisiana, the District of Maryland, the District of Minnesota, the District of New Jersey, the Southern District of Ohio, and the District of South Carolina. 1 The Section 1407 transfer motions are brought by i) plaintiffs in two of the constituent Northern District of Ohio actions, who each separately seek centralization in the Northern District of Ohio, and ii) plaintiff in one of the constituent Northern District of California actions, who seeks centralization in the Central or Northern District of California. Common defendant Sulzer Orthopedics, Inc. (Sulzer) originally opposed centralization but it no longer argued that position at the Panel’s MDL-1401 oral argument. Instead it urged centralization in the Central District of California. The only remaining opposition to centralization comes from the plaintiffs in i) one of the constituent Southern District of Florida actions, ii) the District of South Carolina action, and iii) seven District of South Carolina potential tag-along actions. Plaintiffs in sixteen of the actions subject to one or more motions, along with plaintiffs in numerous potential tag-along actions, support transfer. As a result of these responses, additional suggested transferee districts have included the Southern District of Florida, the Northern and Southern Districts of Illinois, the Eastern District of Louisiana, the Eastern District of New York, and the Southern District of Texas. Lastly, in the event the Panel orders centralization over the objections of the District of South Carolina plaintiffs, then they favor selection of the District of South Carolina as transferee forum.

On the basis of the papers filed and the oral argument held, the Panel finds that the actions in this litigation involve common questions of fact and that centralization in the Northern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efñ- eient conduct of the litigation. The centralized actions are all brought by persons who allegedly received defective hip implants (Inter-Op shells) 2 that were manufactured and distributed by common defendant Sulzer. The actions thus present complex common questions of fact concerning, inter alia, i) the development, testing, manufacturing and marketing of the Sulzer products, and ii) defendant’s knowledge concerning the possible adverse effects associated with use of the Sulzer shells. Centralization under Section 1407 is necessary in order to eliminate duplica-tive discovery, prevent inconsistent pretrial rulings (especially with respect to questions of privilege issues, confidentiality issues and class certification), and conserve the resources of the parties, their counsel and the judiciary.

Some of the few plaintiffs to oppose transfer premise their objections, in part, on the grounds that other actions involve issues (such as class certification) that are not present in theirs, and that transfer would be inconvenient or economically burdensome. We note that Section 1407 does not require a complete identity or even majority of common factual and legal issues as a prerequisite to centralization. We point out that transfer under Section 1407 has the salutary effect of placing all actions in this docket before a single judge who can formulate a pretrial program that: 1) allows discovery with respect to any non-common issues to proceed concurrently with discovery on common issues, In re Joseph F. Smith Patent Litigation, 407 F.Supp. 1403, 1404 (J.P.M.L.1976); and 2) ensures that pretrial proceedings will be conducted in a manner leading to the just and expeditious resolution of all actions to the overall benefit of the parties. We observe that since Section 1407 transfer is for pretrial proceedings only, there is usually no need for the parties and witnesses to travel to the transferee district for depositions or otherwise. See, e.g., Fed. R.Civ.P. 45(c). Furthermore, the judicious use of liaison counsel, lead counsel and committees of counsel will eliminate the need for most counsel ever to travel to the transferee district. See Manual for Complex Litigation, Third, § 20.22 (1995). And it is most logical to assume that prudent counsel will combine their forces and apportion their workload in order to streamline the efforts of the parties and witnesses, their counsel and the judiciary, thereby effectuating an overall savings of cost and a minimum of inconvenience to all concerned. See In re Nissan Motor Corporation Antitrust Litigation, 385 F.Supp. 1253, 1255 (J.P.M.L.1974).

Given the range of locations of parties and witnesses in this docket, the geographic dispersal of current and anticipated constituent actions, and the wide array already of suggested transferee districts, it is clear that any one of a large number of districts would qualify as an appropriate transferee forum for this litigation nationwide in scope. In concluding that the Northern District of Ohio is the appropriate forum for this docket, we note that the Ohio district is an accessible, geographically central metropolitan district that i) is not currently taxed with other multidistrict dockets, and ii) enjoys general caseload conditions permitting the Panel to effect the Section 1407 assignment to a court with the present resources to devote the substantial time to pretrial matters that this complex docket is likely to require.

IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on the attached Schedule A and pending outside the Northern District of Ohio are hereby transferred to the Northern District of Ohio and, with the consent of that court, assigned to the Honorable Kathleen McDonald O’Malley for coordinated or consolidated pretrial proceedings with the actions pending in that district and listed on Schedule A.

ATTACHMENT

SCHEDULE A

MDL-1401 — In re Inter-Op Hip Prosthesis Products Liability Litigation

Central District of California

Jyl Starkman v. Sulzer Medica, Ltd., et al., C.A. No. 2:01-20

Steve Alvernaz v. Sulzer Medica, et al., C.A. No. 2:01-1522

Sara Carlyle v. Sulzer Medica, et al., C.A. No. 2:01-1524

Sam Rackham v. Sulzer Medica, et al., C.A. No. 2:01-1525

Churchill Campbell v. Sulzer Medica, et al., C.A. No. 2:01-1526

Robert T. Schowe v. Sulzer Medica, et al., C.A. No. 2:01-1527

Marjorie Peterson v. Sulzer Medico, et al., C.A. No. 2:01-1528

Richard Coulter v. Sulzer Orthopedics, Inc., et al., C.A. No. 2:01-1591

Dennis Benson v. Sulzer Medica, et al., C.A. No. 2:01-2775

Leroy Krauss v. Sulzer Medica, et al., C.A. No. 2:01-2776

Gretel Quick v. Sulzer Orthopedics, Inc., et al., C.A. No. 2:01-2846

Norihem District of California

James Ferguson v. Sulzer Medica, Inc., et al., C.A. No. 3:01-660

M. Bruno Pardini, et al. v. Sulzer Orthopedics, Inc., et al., C.A. No. 3:01-696

Southern District of Florida

Judith Connell v. Sulzer Medica, et al., C.A. No. 0:01-6222

Madeline Faircloth v. Sulzer Medica, et al., C.A. No. 0:01-6269

Northern District of Illinois

Jean Casey v. Sulzer Medica, Ltd., et al., C.A. No. 1:01-403

Eastern District of Louisiana

Mark Rachel, et al. v. Sulzer Orthopedics, Inc., C.A. No. 2:01-370

District of Mainland

Susan Berey v. Sulzer Medica, Ltd., et al., C.A. No. 8:01-431

Eastern District of Michigan

Richard Asher, et al. v. Sulzer Orthopedics, Inc., et al., C.A. No. 2:01-70502

David Littlefield v. Sulzer Orthopedics, Inc., et al., C.A. No. 2:01-70623

District of Minnesota

Donald R. Leeper v. Sulzer Orthopedics, Inc., C.A. No. 0:01-250

District of New Jersey

Camille Cantatore, et al. v. Sulzer Orthopedics, Inc., et al., C.A. No. 2:01-634

Eastern District of New York

Nicholas Carillo v. Sulzer Medica, Ltd., et al., C.A. No. 1:01-436

Anthony Gmves v. Sulzer Orthopedics, Inc., C.A. No. 1:01-688

Northern District of Ohio

Thomas L. Pudelski, et al. v. Sulzer Medica, Ltd., et al., C.A. No. 1:01-243

Karen Robinson v. Sulzer Orthopedics, Inc., et al., C.A. No. 1:01-272

Diana Miglets, et al. v. Sulzer Medica, Ltd., et al., C.A. No. 1:01-287

Jean Kaminsky, et al. v. Sulzer Orthopedics, Inc., et al., C.A. No. 1:01-352

Southern District of Ohio

John R. Sferro, Jr., et al. v. Sulzer Medico, et al., C.A. No. 3:01-76

District of South Carolina

Frances Peeples v. Sulzer Orthopedics, Inc., et al., C.A. No. 3:01-241

1 . Three additional actions pending in the Western District of Texas and the Eastern District of Virginia were included in one or more of the Section 1407 motions. These actions, John John Fay v. Sulzer Orthopedics, Inc., W.D. Texas, C.A. No. 1:01-66, Robert Schinauer v. Sulzer Orthopedics, Inc., W.D. Texas, C.A. No. 1:01-90, and Gary O’Dell v. Sulzer Medica USA, Inc., E.D. Virginia, C.A. No. 2:01-128, have since been dismissed or remanded to state court and, accordingly, the question of transfer with respect to them is moot. Additionally, the Panel has been notified of more than 60 potentially related actions now pending in federal district courts. In light of the Panel’s disposition of this docket, these additional actions will be treated as potential tag-along actions. See Rules 7.4 and 7.5, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001).

2 . Sulzer explains that a human hip joint consists of two parts: 1) a cup-shaped socket that is part of the pelvic bone, and 2) a ball at the top of the thigh bone that fits into and rotates within the socket. When a patient undergoes total hip replacement, a surgeon inserts a metal cup into the pelvic socket (the "aceta-bulum”) and a ball-ended stem into the thigh. When the ball is fitted securely into the cup (or "acetabular shell”), the result is an artificial joint similar to the one that it has replaced.