Ching v. Biomet Orthopedics, LLC et al

Filing 24

ORDER TRANSFERRING CASE to the United States District Court for the Northern District of Indiana. IN RE: BIOMET M2A MAGNUM HIP IMPLANT PRODUCTS LIABILITY LITIGATION. MDL No. 2391. Signed by John H. Heyburn, II, Chairman of the Panel on 10/4/12. (aaa, COURT STAFF) (Filed on 10/10/2012)

Judge Robert L. Miller, Jr.

-2Biomet argues that centralization should be denied for several reasons. First, it contends that
individualized, plaintiff-specific issues will predominate among the actions. Biomet also argues
several distinguishing attributes make this litigation inappropriate for centralization – its M2a
Magnum system has been on the market for several years, they are not subject to a recall (as was the
hip implant in MDL No. 2197 – In re: DePuy Orthopaedics, Inc., ASR Hip Implant Prods. Liab.
Litig.), Biomet has expeditiously settled several M2a Magnum cases in the past, and its M2a Magnum
system has been comparatively less problematic than similar hip implant products of its competitors.
Though these arguments have some weight, they are not strong enough to overcome the reasons
supporting centralization.
Certainly, individual issues will be important at some point in these cases. However, a central
issue in these cases may well be whether a common defect has led to the injuries alleged. Moreover,
as we recently noted in centralizing In re Wright Medical Tech., Inc., Conserve Hip Implant Prods.
Liab. Litig., “almost all injury litigation involves questions of causation that are case- and
plaintiff-specific. Such differences have not been an impediment to centralization in the past.” 844
F. Supp. 2d 1371, 1372 (J.P.M.L. 2012). We believe that centralized pretrial discovery will have
significant value here.
That Biomet’s products have been on the market for a long time compared to other hip implant
products (and related evidence of the revision rate for the M2a Magnum system) may be probative
to the ultimate question of defectiveness, but much less so as to whether centralization is warranted.
We are typically hesitant to wade into a given litigation’s merits, as Biomet invites by citing statistics
and studies of the reliability of the M2a Magnum system.5 Moreover, the history of settlement of
several cases is dwarfed by the almost 70 cases currently pending in federal court. Centralization will
avoid duplicative discovery on such complex issues as the design, testing, manufacturing, and
marketing of the M2a Magnum system and related motion practice.
For all these reasons, on the basis of the papers filed and the hearing session held, we find that
these actions involve common questions of fact, and that centralization will serve the convenience of
the parties and witnesses and promote the just and efficient conduct of the litigation. The actions
share factual questions concerning design, manufacture, marketing and performance of Biomet’s M2a
Magnum system. Centralization will eliminate duplicative discovery, prevent inconsistent pretrial
rulings on discovery and other issues, and conserve the resources of the parties, their counsel and the
judiciary.
Finally, we conclude that the Northern District of Indiana is an appropriate transferee district
for these proceedings. We reach this conclusion even though no party suggested it and no plaintiff
has yet filed a case there. We do so for the following reasons. The Biomet hip implants at issue are

5

See In re: Kauffman Mutual Fund Actions, 337 F.Supp. 1337, 1339-40 (J.P.M.L. 1972) (“The
framers of Section 1407 did not contemplate that the Panel would decide the merits of the actions
before it and neither the statute nor the implementing Rules of the Panel are drafted to allow for such
determinations.”).

-3marketed and sold throughout the nation. Biomet itself is based in nearby Warsaw, Indiana. With
many of the relevant documents and witnesses likely found there, the district should be convenient
for Biomet. This relatively accessible and geographically central district enjoys favorable docket
conditions. Finally, Judge Robert L. Miller, Jr., is an experienced transferee judge who is well-versed
in the nuances of complex, multidistrict litigation. We are confident that he will steer this potentially
complex litigation on a prudent course.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on
Schedule A are transferred to the Northern District of Indiana and, with the consent of that court,
assigned to the Honorable Robert L. Miller, Jr., for coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

_________________________________________
John G. Heyburn II
Chairman
Kathryn H. Vratil
Barbara S. Jones
Marjorie O. Rendell

W. Royal Furgeson, Jr.
Paul J. Barbadoro
Charles R. Breyer

IN RE: BIOMET M2A MAGNUM HIP IMPLANT
PRODUCTS LIABILITY LITIGATION

MDL No. 2391

SCHEDULE A

Northern District of California
Leyda Ching v. Biomet Orthopedics, LLC, et al., C.A. No. 3:12-00502
Patrick D. Hales, et al. v. Biomet Orthopedics, LLC, et al., C.A. No. 4:12-03081
District of Colorado
Diane Winningham v. Biomet Orthopedics, LLC, et al., C.A. No. 1:12-02376
Eastern District of Louisiana
Lana Turner v. Biomet Orthopedics, L.L.C, et al., C.A. No. 2:11-02443
Vincent Pizzitolo v. Biomet Orthopedics, L.L.C, C.A. No. 2:12-00521
Eastern District of New York
Nan Faber v. Biomet, Inc., et al., C.A. No. 1:12-00783
Southern District of New York
William Konowal, et al. v. Biomet, Inc., et al., C.A. No. 1:12-04342
Northern District of Texas
Carole St. Cyr et al. v. Biomet Orthopedics, Inc., et al., C.A. No. 4:12-00032