Richard B. Sarafian v. Wright Medical Technology, Inc. et al

Filing 95

MINUTES OF Motion Hearing held before Judge Christina A. Snyder RE: Plaintiff's Motion to Consolidate Cases 85 . Plaintiffs motions to consolidate are GRANTED. The Court orders the consolidation of Case Nos. 2:15-cv-09397-CAS and 2:15-cv-07102- CAS. All further filings in these cases shall be made under Case No. 2:15-cv-07102-CAS. The Clerk shall administratively close Case No. 2:15-cv-09397-CAS. The parties shall file a joint, proposed scheduling order forthwith. (Made JS-6. Case Terminated.) Court Reporter: Laura Elias. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
“O”
CIVIL MINUTES - GENERAL
Case No.

Date

CV 15-09397-CAS (KSx)

January 9, 2017

CV 15-07102-CAS (KSx)
Title

RICHARD B. SARAFIAN V. WRIGHT MEDICAL TECHNOLOGY, INC.
ET AL.
KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET AL.

Present: The Honorable

CHRISTINA A. SNYDER

Ingrid Valdes

Laura Elias

N/A

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Helen Zukin

Christopher Yeh

D. Bryan Garcia

Dana Ash

Proceedings:

PLAINTIFF’S MOTION TO CONSOLIDATE CASES (Filed
December 12, 2016, Case No. 2:15-cv-09397-CAS, Dkt. 85)
PLAINTIFF’S MOTION TO CONSOLIDATE CASES (Filed
December 12, 2016, Case No. 2:15-cv-07102-CAS, Dkt. 87)

I.

INTRODUCTION

On September 9, 2015, plaintiff Kristin Biorn filed a complaint against defendants
Wright Medical Technology, Inc. (“WMT”) and Wright Medical Group, Inc. (“WMG”).
Case No. 2:15-cv-07102-CAS (“the Biorn Action”), Dkt. 1. Biorn’s initial complaint
asserted eights claims against defendants: (1) strict products liability—manufacturing
defect, (2) strict products liability—failure to warn, (3) negligence, (4) negligence—
failure to recall/retrofit, (5) breach of implied warranty, (6) fraudulent misrepresentation,
(7) fraudulent concealment, and (8) negligent misrepresentation. Id.
On October 21, 2015, pursuant to the stipulation of the parties, the Court dismissed
defendant WMG and Biorn’s claim for breach of implied warranty without prejudice.
Biorn Action, dkt. 17. On July 7, 2016, the Court granted Biorn leave to file a First
Amended Complaint (“Biorn FAC”) naming MicroPort Orthopedics, Inc. (“MicroPort”)
as an additional defendant. See Biorn Action, dkt. 59.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
“O”
CIVIL MINUTES - GENERAL
Case No.

CV 15-09397-CAS (KSx)

Date

January 9, 2017

CV 15-07102-CAS (KSx)
Title

RICHARD B. SARAFIAN V. WRIGHT MEDICAL TECHNOLOGY, INC.
ET AL.
KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET AL.

On December 4, 2015, Richard Sarafian filed a complaint against WMT and
WMG. Case No. 2:15-cv-09397-CAS (“the Sarafian Action”), dkt. 1. On January 25,
2016, Sarafian filed the operative First Amended Complaint (“Sarafian FAC”) against
WMT, WMG, and MicroPort. Sarafian Action, Dkt. 20. The FAC asserts claims against
defendants for: (1) strict products liability––manufacturing defect; (2) strict products
liability––failure to warn; (3) negligence; (4) negligence––failure to recall/retrofit; (5)
fraudulent misrepresentation; (6) fraudulent concealment; and (7) negligent
misrepresentation. Id. On April 1, 2016, the Court granted WMG’s motion to dismiss
the FAC for lack of personal jurisdiction over WMG. Sarafian Action, dkt. 54.
The operative FAC in each action now asserts the same seven claims against
the same two defendants, WMT and MicroPort. On December 2, 2016, Biorn and
Sarafian filed the above-captioned motions to consolidate. On December 19, 2016,
WMT filed an opposition to both motions, in which MicroPort joined. On January
4, 2016, Biorn and Sarafian filed replies.1
Having carefully considered the parties’ arguments, the Court finds and
concludes as follows.
II.

BACKGROUND

On May 20, 2015, the parties all stipulated to the coordination and sharing of
discovery in these two actions, agreeing that coordination “will promote efficiency,
conserve resources, avoid needless duplication in the production of discovery and
deposition of witnesses, to the extent any such discovery or witnesses are common to
both actions, and expedite the flow of discovery material.” Biorn dkt. 51; Sarafian dkt.
Plaintiffs’ counsel acknowledges that both replies were untimely. According to
plaintiffs’ counsel, he notified defendants of his intention to file an untimely reply.
Defense counsel responded by saying that defendants had no position in regard to
plaintiff’s request to file an untimely reply. In light of the foregoing, the Court will
consider the arguments presented in the reply filed by plaintiffs.
1

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
“O”
CIVIL MINUTES - GENERAL
Case No.

CV 15-09397-CAS (KSx)

Date

January 9, 2017

CV 15-07102-CAS (KSx)
Title

RICHARD B. SARAFIAN V. WRIGHT MEDICAL TECHNOLOGY, INC.
ET AL.
KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET AL.

68. Sarafian and Biorn are represented by the same counsel. Their FACs are also
substantially similar. Sarafian and Biorn allege the following facts in their respective
suits.
Defendants are engaged in the business of manufacturing, marketing, and
distributing prosthetic orthopedic products, including the Wright Medical Profemur Total
Hip System. Biorn and Sarafian both underwent total hip replacement surgery at CedarsSinai Medical Center of Los Angeles, California. Dr. Jason Snibbe performed the
surgeries upon both plaintiffs to implant the same modular prosthetic hip, a Profemur
“VV” Long neck, model PHAC-1254, made from cobalt alloy (“the Device”). The
Device was designed, manufactured, and distributed by defendants. Both plaintiffs allege
that the Device suddenly and catastrophically failed after being implanted.
The Device is an artificial hip system that consists of two components: a modular
neck and a femoral stem. Defendants began manufacturing and selling the Device after
December 13, 2000, when defendants received permission from the United States Food
and Drug Administration (“FDA”) to distribute the Device within the United States. The
device the FDA approved contains a modular neck that was designed and had previously
been distributed in Europe by a company called Cremascoli.
The plaintiffs further allege that defendants made “representations, statements,
claims, and guarantees about its Profemur modular necks” in “various marketing and
promotional material published and distributed by [defendants] from approximately
[2002 to 2005].” Specifically, plaintiff alleges that WMT made the following
representations:
The modular neck used with the Profemur Hip has been employed by
Wright Cremascoli for over 15 years. The necks were designed in 1985 and
have been successfully implanted in over 50,000 patients requiring both
primary and revisionship procedures. The necks are used in other Wright
Cremascoli hip systems besides the Profemur Hip. None of the necks has
experienced a clinical failure since their inception.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
“O”
CIVIL MINUTES - GENERAL
Case No.

CV 15-09397-CAS (KSx)

Date

January 9, 2017

CV 15-07102-CAS (KSx)
Title

RICHARD B. SARAFIAN V. WRIGHT MEDICAL TECHNOLOGY, INC.
ET AL.
KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET AL.

and,
The modular neck system, designed by Cremascoli in 1985 (U.S. Patent
#4,957,510), has now been successfully implanted in over 50,000 patients
requiring both primary and revision hip arthroplasty. Extensive laboratory
tests have proven that the coupling between the modular neck and femoral
implant guarantees:
• Structural reliability
• Absence of significant micromovement
• Absence of fretting corrosion
Sarafian FAC ¶ 22 (emphasis in FAC); Biorn FAC ¶ 19 (same).
Plaintiffs contend that defendants were aware of the risk of failure of the modular
necks and failed to notify surgeons or patients. Plaintiffs also allege that defendants
failed to include information in the instructions for the Profemur products regarding risk
factors, such as obesity, heavy lifting, and impact sports, which may increase the
likelihood of a failure in the device. Plaintiffs further allege that defendants specifically
marketed their hip device to patients who are overweight and engage in physical activity,
notwithstanding evidence that these types of patients may be prone to a device failure.
The plaintiffs allege that the Device was not merchantable and was designed in such a
way as to render it unreasonably dangerous.
On or about August 20, 2012, Sarafian had total left hip arthroplasty, at which time
Snibbe implanted the Device. On or about October 9, 2015, the femoral neck of the
Device in Sarafian’s hip suddenly broke into two pieces while Sarafian was performing
the “normal and expected activity of daily living.” Sarafian FAC ¶ 67. Sarafian was
taken by ambulance to Cedars-Sinai Medical Center. On October 11, 2015, the Device
was surgically removed by Snibbe in a surgical procedure known as “revision.” Id. ¶ 69.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
“O”
CIVIL MINUTES - GENERAL
Case No.

CV 15-09397-CAS (KSx)

Date

January 9, 2017

CV 15-07102-CAS (KSx)
Title

RICHARD B. SARAFIAN V. WRIGHT MEDICAL TECHNOLOGY, INC.
ET AL.
KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET AL.

On or about August 20, 2013, Biorn had total left hip arthroplasty, at which time
Snibbe implanted the Device. On or about April 5, 2015, the femoral neck of the Device
in Biorn’s hip suddenly broke into two pieces while Biorn was performing the “normal
and expected activity of daily living.” Biorn FAC ¶ 64. Biorn was taken by ambulance
to Cedars-Sinai Medical center. On April 6, 2015, Snibbe performed a revision,
surgically removing the Device from Biorn’s leg. Id. ¶ 66.
III.

LEGAL STANDARDS

Federal Rule of Civil Procedure 42(a) permits the Court to consolidate actions
involving a common question of law or fact. Consolidation is proper when it serves the
purposes of judicial economy and convenience. “The district court has broad discretion
under this rule to consolidate cases pending in the same district.” Investors Research Co.
v. United States District Court for the Central District of California, 877 F.2d 777 (9th
Cir. 1989). “In determining whether to consolidate, a court weighs the interest in judicial
convenience against the potential for delay, confusion, and prejudice caused by
consolidation.” Ferguson Corinthian Colleges Inc., No. 11-cv-0127-DOC, 2011 WL
1519352, at *2 (C.D. Cal. Apr. 15, 2011) (quotation marks omitted); see also Huene v.
United States, 743 F.2d 703, 704 (9th Cir. 1984) (“The district court, in exercising its
broad discretion to order consolidation of actions presenting a common issue of law or
fact under Rule 42(a), weighs the saving of time and effort consolidation would produce
against any inconvenience, delay, or expense that it would cause). “[T]ypically,
consolidation is favored.” Ho Keung Tse v. Apple, Inc., No. 12-cv02653-SBA, 2013 WL
451639, at *3 (N.D. Cal. Feb. 5, 2013).
IV.

DISCUSSION

Plaintiffs seek to consolidate both actions for all purposes, including trial and all
remaining deadlines. Plaintiffs argue that common questions of law and fact predominate
over distinguishing facts, such that consolidation will result in greater efficiency and
preservation of resources for all involved. According to plaintiffs both cases will involve
substantially similar pre-trial and trial related motions, expert testimony on common
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
“O”
CIVIL MINUTES - GENERAL
Case No.

CV 15-09397-CAS (KSx)

Date

January 9, 2017

CV 15-07102-CAS (KSx)
Title

RICHARD B. SARAFIAN V. WRIGHT MEDICAL TECHNOLOGY, INC.
ET AL.
KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET AL.

issues of causation and the defectiveness of the Device, and the same corporate
documents and witnesses.
Defendants present numerous arguments against consolidation. Defendants argue
that a number of courts have denied consolidation motions in medical implant cases; that
consolidation will result in juror confusion and prejudice to defendants because plaintiffs
have different medical histories; that the differences between each plaintiff will make it
difficult to compartmentalize evidence relating to each; that jurors may improperly infer
liability from the presence of multiple plaintiffs; and that consolidation would permit the
admission of evidence which would otherwise be inadmissible in each case, tried
separately.
On balance, plaintiffs have the stronger argument. As is discussed at length in
plaintiffs’ replies, virtually every case relied upon by defendants involved consolidation
of substantially more than two cases or are easily distinguished from the present
circumstances.
For instance, defendants argue that the Los Angeles Superior Court recently denied
an analogous motion by plaintiff’s counsel in a separate group of cases pending in state
court against WMT. However, the decision on which defendants rely is easily
distinguished from the instant motion. In the state court matter, nine plaintiffs sought to
consolidate their cases. See dkt. 91-1 Ex A (Order in re: Wright Hip System Cases,
Judicial Council Coordinate Proceeding No. 4710, dated May 23, 2016 (“the Wright Hip
System Cases Order”)). The nine plaintiffs were implanted with different devices,
underwent different surgeries (e.g. one plaintiff received bilateral implants), suffered
defects occurring between two and seven years after implantation, and brought different
claims (some plaintiffs had lost wage claims and others had loss of consortium claims).
Id. In contrast, here, Sarafian and Biorn were both implanted with the same device, had
the device implanted in their left hips, suffered injuries when their devices allegedly
failed 37 months and 20 months after implantation respectively, and assert the same
claims for relief. Accordingly, the Wright Hip System Cases Order has little bearing
here. Having reviewed the many cases relied upon by defendants, none appears to be
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
“O”
CIVIL MINUTES - GENERAL
Case No.

CV 15-09397-CAS (KSx)

Date

January 9, 2017

CV 15-07102-CAS (KSx)
Title

RICHARD B. SARAFIAN V. WRIGHT MEDICAL TECHNOLOGY, INC.
ET AL.
KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET AL.

analogous to the instant matters. See e.g. Adams v. I-Flow Corp., 2010 U.S. Dist. LEXIS
33066, at *20-21 (C.D. Cal. Mar. 30, 2010) (misjoinder regarding “mass action” product
liability case brought by 141 plaintiffs who underwent shoulder surgeries by different
doctors in 37 states and Canada); Heather v. Medtronic Inc., 2014 U.S. Dist. LEXIS
84658, at *2 (C.D. Cal. June 9, 2014) (severing claims by 31 plaintiffs, from 22 states,
who underwent surgeries by different surgeons using a product in different off-label
manners); Bowles v. Novartis Pharm. Corp., 2013 WL 663040, at *2 (S.D. Ohio Feb. 25,
2013) (denying a motion to consolidate two pharmaceutical cases brought by two patients
treated by different doctors, for different types of cancer, who received prescriptions
eight years apart from one another, and received different warnings).
In opposition to the instant motions, defendants assert that the plaintiffs have
different characteristics and that, therefore there will be very little factual overlap.2
According to defendants, the following factual distinctions weigh against consolidation
of these cases: Biorn is 67 years old whereas Sarafian is 56 years old; Biorn is 5’6” tall
whereas Sarafian is 6’1”; Biorn weighs approximately 149 pounds whereas Sarafian
weighs approximately 178 pounds; Biorn underwent three revision surgeries, whereas
Sarafian underwent only one. In addition, defendants assert “upon information and
belief,” that Sarafian, in contrast to Biorn, has a history of alcohol abuse, is a smoker, and
has abused prescription pain medications. Opp’n at 12.
With regard to any differences between Sarafian and Biorn’s claims and
backgrounds, the Court is not persuaded that they will actually preclude substantial
factual overlap or that these differences outweigh judicial efficiencies to be gained by
Defendants list a number of purported “case-specific differences” in their
opposition memorandum. Opp’n at 12. Defendants do not present or cite evidence
supporting their contentions in the form of a medical record, declaration, or other items
already in the record. However, in reply, plaintiffs do not appear to dispute the factual
contentions made by defendants. Instead, plaintiffs argue that said facts are a “red
herring” concerning issues that “will be excluded from trial, as they are not relevant to
the cases.” Reply at 8.
2

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
“O”
CIVIL MINUTES - GENERAL
Case No.

CV 15-09397-CAS (KSx)

Date

January 9, 2017

CV 15-07102-CAS (KSx)
Title

RICHARD B. SARAFIAN V. WRIGHT MEDICAL TECHNOLOGY, INC.
ET AL.
KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET AL.

consolidating the trials. Defendants cite no authority for their contention that a difference
in height, weight, and age between the plaintiffs should prevent consolidation.
Additionally, setting aside the question of whether and how the Court should weigh
statements made in a memorandum without citation to evidence, defendants do not
explain why Sarafian’s purported background is relevant to the performance of a device
implanted into his hip or likely to cause confusion. Accordingly, it does not appear that
individualized factual disputes would predominate in a consolidated trial. Instead, it is
likely that the parties will each call experts to testify on defect issues common to both
cases and rely upon much of the same evidence. Although evidence regarding damages
will differ for each plaintiff, courts routinely call upon juries to consider damages
separately for different plaintiffs. See e.g. Garcia Decl. Ex. 1, In re DePuy Orthopaedics,
Inc. Pinnacle Hip Implant Prods. Liab. Litig., No. 3:11-md-02244-K (N.D. Tex. Jan. 8,
2016) (consolidating five hip joint product liability cases involving surgeries where the
jury would be instructed to consider liability and damages as to each plaintiff separately).
Finally, defendants argue that certain evidence may be admissible regarding
Biorn’s claims, but inadmissible as to Sarafian because additional information regarding
the Device may have come to light between the time of Biorn’s implantation surgery and
Sarafian’s. According to defendants, “the ‘state of the art’ in orthopedics and [WMT’s]
knowledge of product risks and benefits was different in August 2012 than it was in
August 2013.” Opp’n at 6. However, defendants do not reference any specific evidence
that would be inadmissible in regard to Sarafian’s claims. Defendants also argue that
they may suffer prejudice because the jury might improperly infer liability from the
existence of multiple plaintiffs. However, the speculative risks of jury confusion or jury
consideration of inadmissible evidence can be mitigated. The Court concludes that
preventative measures, such as jury instructions, will be sufficient to prevent any
potential prejudice to defendants from a consolidated trial.
Both actions appear to share common issues of fact and law. If tried separately,
many of the same witnesses would likely testify, including experts, defendants’
employees, and the surgeon who implanted the Device for both Sarafian and Biorn. The
parties are already engaged in coordinated discovery, for which the cases share the same
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
“O”
CIVIL MINUTES - GENERAL
Case No.

Date

CV 15-09397-CAS (KSx)

January 9, 2017

CV 15-07102-CAS (KSx)
Title

RICHARD B. SARAFIAN V. WRIGHT MEDICAL TECHNOLOGY, INC.
ET AL.
KRISTIN BIORN V. WRIGHT MEDICAL TECHNOLOGY, INC. ET AL.

discovery deadline. Additionally, the Biorn Action and Sarafian Action are currently
scheduled for trial on December 5, 2017, and October 3, 2017, respectively.
Accordingly, it does not appear that consolidation will require undue delay.
Weighing the risks of confusion, delay, and prejudice against the likely
conservation of judicial resources, the Court concludes that these matters should be
consolidated for all purposes. Accordingly, the above-captioned motions in both cases
are GRANTED.
V.

CONCLUSION
Plaintiffs’ motions to consolidate are GRANTED.

The Court orders the consolidation of Case Nos. 2:15-cv-09397-CAS and 2:15-cv07102-CAS. All further filings in these cases shall be made under Case No. 2:15-cv07102-CAS. The Clerk shall administratively close Case No. 2:15-cv-09397-CAS. The
parties shall file a joint, proposed scheduling order forthwith.
IT IS SO ORDERED.
06
Initials of
Preparer

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IV

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