Nichols v. DePuy Orthopaedics Inc et al

Filing 32

TRANSFER ORDER transferring case to USDC for the Northern District of Ohio to be included in MDL No. 2197, In Re: DePUY ORTHOPAEDICS, INC., ASR HIP IMPLANT PRODUCTS LIABILITY LITIGATION. Signed by Chairman of the Panel, John G. Heyburn II. (jct)

Case MDL No. 2197 Document 732 Filed 08/09/11 Page 1 of 3
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
UNITED STATES JUDICIAL PANEL
Northern District of Ohio
on
By: s/Victoria Kirkpatrick
MULTIDISTRICT LITIGATION
Deputy Clerk

IN RE: DePUY ORTHOPAEDICS, INC., ASR HIP IMPLANT
PRODUCTS LIABILITY LITIGATION

MDL No. 2197

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 I oppose the motions.
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
(l.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 ofmotions to remand their respective actions to state court. Plaintiffs in these
actions can present their motions for remand to the transferee judge. 2 See, e.g., In re Ivy, 901 F.2d 7

Judge Paul 1. Barbadoro and Marjorie O. Rendell took no part in the decision ofthis matter.
1 DePuy, Inc.; Johnson & Johnson International; Michael Chad Alberson; M. Chad Alberson,
LLC; Commonwealth Surgical Solutions, Inc.; DC Medical, LLC; MJW Orthopedics, LLC; Michael
1. Wright; Ted Fox; C.J. George; Michael T. Kimberl; and Jonathon McDaniel.

Plaintiffs in the Northern District ofTexas 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

Case MOL No. 2197 Document 732 Filed 08/09/11 Page 2 of 3

-2­
(2nd Cir. 1990); In re Prudential Ins. Co. ofAm. Sales Practices Litig., 170 F.Supp.2d 1346, 1347-48
(J.P.M.L. 2001).
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

Kathryn H. Vratil
Frank C. Damrell, Jr.

W. Royal Furgeson, Jr.
Barbara S. Jones

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 flied 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.

Case MDL No. 2197 Document 732 Filed 08/09/11 Page 3 of 3

IN RE: DePUY ORTHOPAEDICS, INC., ASR HIP IMPLANT
PRODUCTS LIABILITY LITIGATION

MDLNo.2197

SCHEDULE A

Eastern District of Arkansas
Penny Nichols v. DePuy Orthopaedics, Inc., et aI., C.A. No. 3:11-00080
Northern District of Georgia
Linda McClure, et aI. v. DC Medical, LLC, et aI., C.A. No. 1:11-00877
A. Joann McDowell v. DC Medical, LLC, et aI., C.A. No.1: 11-00939
Harold Williams v. DC Medical, LLC, et aI., C.A. No. 1:11-00940
Matthew Bailey, et aI. v. DC Medical, LLC, et aI., C.A. No. 1:11-01169
Deborah Brannon v. DC Medical, LLC, et aI., C.A. No. 1:11-01170
Zina Finley v. DC Medical, LLC, et aI., C.A. No.1: 11-01171
James Lewis, et aI. v. DC Medical, LLC, et aI., C.A. No. 1:11-01172
Bobby Gallimore, et aI. v. DC Medical, LLC, et aI., C.A. No.1: 11-01173
Dennis Wilson v. DC Medical, LLC, et aI., C.A. No. 1:11-01174
Nicole Askew v. DC Medical, LLC, et aI., C.A. No. 1:11-01245
Western District of Kentucky
Larry G. Johnson, et aI. v. DePuy Orthopaedics, Inc., et aI., C.A. No. 5:11-00045
Terry Carnes v. DePuy Orthopaedics, Inc., et aI., C.A. No. 5:11-00046
Gary Lee McElwayne, et aI. v. DePuy Orthopaedics, Inc., et aI., C.A. No. 5:11-00047
Linda Lacey v. DePuy Orthopaedics, Inc., et aI., C.A. No. 5:11-00048
Lisa F. Humphrey v. DePuy Orthopaedics, Inc., et aI., C.A. No. 5:11-00049
Derla Thomas v. DePuy Orthopaedics, Inc., et aI., C.A. No. 5:11-00050
Steve Kimbro, et aI. v. DePuy Orthopaedics, Inc., et aI., C.A. No. 5:11-00051
Michael Bryson, et aI. v. DePuy Orthopaedics, Inc., et aI., C.A. No.5: 11-00052
District of Nevada
Jack Day, et aI. v. DePuy Orthopaedics, Inc., et aI., C.A. No.2: 11-00501
Northern District of Texas
Mary Banks, et aI. v. DePuy Orthopaedics, Inc., et aI., C.A. No. 3:11-00718
Eastern District of Virginia
Louis Michael Zaborsky, II v. DePuy Orthopaedics, Inc., et aI., C.A. No. 3:11-00251