LaForge v. Gynecare Inc. et al

Filing 20

ORDER Granting 19 Stipulation re: Dismissal of Plaintiff's Complaint Without Prejudice. Signed by Judge Claudia Wilken on 9/12/2011. (ndr, COURT STAFF) (Filed on 9/12/2011)

1
2
3
4
5
6
7
8

MICHELLE A. CHILDERS (SBN #197064)
[e-mail]
NATHAN D. CARDOZO (SBN #259097)
[e-mail]
DRINKER BIDDLE & REATH LLP
50 Fremont Street, 20th Floor
San Francisco, CA 94105-2235
Telephone: [phone]
Facsimile:
[phone]
Attorneys for Defendants
ETHICON, INC. (on its own behalf and behalf of its
Division, ETHICON WOMEN’S HEALTH &
UROLOGY, and erroneously sued as GYNECARE,
INC.); and JOHNSON & JOHNSON

9
UNITED STATES DISTRICT COURT
10
NORTHERN DISTRICT OF CALIFORNIA
11
OAKLAND DIVISION
12
13
GINA LAFORGE, an individual,
14
Plaintiff,
15
v.

Case No. 4:11-CV-00698-CW
JOINT STIPULATION AND [PROPOSED]
ORDER RE DISMISSAL OF PLAINTIFF’S
COMPLAINT WITHOUT PREJUDICE

16
17
18
19

GYNECARE, INC., a California
corporation; ETHICON, INC., a New
Jersey corporation; JOHNSON &
JOHNSON, a New Jersey corporation; and
DOE MANUFACTURES ONE through
ONE HUNDRED,

Judge:

Hon. Claudia Wilken

Complaint Filed:
Trial Date:

October 20, 2010
Not set

Defendants.

20
21
22

WHEREAS, counsel for Plaintiff Gina LaForge has requested that counsel for Defendants

23

Ethicon, Inc. and Johnson & Johnson enter into negotiations regarding the response of Defendants

24

to an anticipated motion of Plaintiff to dismiss the above-captioned litigation pursuant to Federal

25

Rule of Civil Procedure 41(a)(2) without prejudice for the purpose of re-filing the above-

26

captioned action in the state courts of New Jersey; and

27
28
D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

WHEREAS, counsel for Plaintiff also represents eleven (11) other Plaintiffs who have 11
similar lawsuits that are pending against Defendants Ethicon, Inc. and Johnson & Johnson in
JOINT STIPULATION & [PROPOSED] ORDER RE
DISMISSAL OF PLAINTIFF’S COMPLAINT
SF01/ 782412.1

CASE NO. 4:11-CV-00698-CW

1

Federal or State court of six different States, viz., the States of California, Indiana, Maryland,

2

Missouri, New Mexico, and Washington, with 10 of those suits pending in federal district court;

3

and

4

WHEREAS, counsel for Plaintiff has indicated that said counsel would file similar

5

motions to dismiss without prejudice in ten (10) pending federal district court actions all for the

6

purpose of re-filing each one of those actions in the state courts of New Jersey; and

7

WHEREAS, counsel for Plaintiff has requested that counsel for Defendants consider a

8

global resolution of how the Plaintiffs and Defendants may reach a mutual stipulation and

9

agreement regarding the dismissal without prejudice of all eleven (11) lawsuits, thereby

10

facilitating the dismissal of those actions and conserving the resources of the Federal judicial

11

system; and

12

WHEREAS, the “primary purpose of Rule 41(a)(2) is to protect the interests of the

13

defendant, although the court should weigh the equities and do justice to all the parties in the

14

case” and therefore, a “dismissal without prejudice should be denied when the defendant will

15

suffer ‘plain legal prejudice’ but should normally be granted in the absence of such prejudice,”

16

see 8 Moore’s Federal Practice ¶ 41.40[5][a], at p. 41-141 (3d ed. 2010); and

17

WHEREAS, counsel for Defendants have indicated the willingness of Defendants to enter

18

into negotiations that would result in the dismissal without prejudice of the foregoing eleven (11)

19

lawsuits so long as the relative legal positions that exist between the parties in each of the eleven

20

(11) lawsuits will not be prejudiced either now upon dismissal or when counsel for the eleven

21

(11) Plaintiffs re-file their current lawsuits in any subsequent judicial forum; and

22

WHEREAS, Plaintiffs have agreed that the legal status quo that now exists between the

23

parties in their separate pending lawsuits should be preserved and maintained in any future

24

proceeding that is re-filed by any Plaintiff against Defendants; and

25

Plaintiff Gina LaForge and Defendants Ethicon, Inc. and Johnson & Johnson therefore

26

mutually STIPULATE and AGREE to the conditional dismissal of Plaintiff’s Complaint without

27

prejudice, and in accordance with the terms of their MUTUAL AGREEMENT and

28

STIPULATION, the Court, pursuant to Federal Rule Civil Procedure 41(a)(2), hereby finds and

D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION & [PROPOSED] ORDER RE
DISMISSAL OF PLAINTIFF’S COMPLAINT
SF01/ 782412.1

-2-

CASE NO. 4:11-CV-00698-CW

1

ORDERS as follows:

2

1.

The Complaint of Plaintiff is hereby conditionally dismissed without prejudice

3

subject to (a) Plaintiff agreeing and stipulating that the conditions set forth in this paragraph and

4

paragraphs 2-12 below shall be imposed in any and all lawsuits that Plaintiff subsequently files

5

against Defendants or either of them (“Defendants”) in any state or federal court located in any

6

state, territory, or possession of the United States of America or in any court in the District of

7

Columbia related to the subject matter of Plaintiff’s Complaint filed in the case sub judice

8

(“Plaintiff’s subsequent lawsuit”) and (b) that the parties' compliance with the terms of the

9

settlement contract shall be one of the material terms of their contract and this order.

10

2.

The time of filing Plaintiff’s subsequent lawsuit shall be deemed to be the time of

11

filing Plaintiff’s original action against Defendants for purposes of calculating the limitations

12

period that applies to Plaintiff’s claims, rather than the actual date when Plaintiffs file their

13

subsequent litigation in New Jersey. Any statute of limitations, prescription, or repose that

14

applies to Plaintiff’s Complaint filed in the case sub judice, if shorter in duration than any other

15

statute of limitations, prescription, or repose that may apply in Plaintiff’s subsequent lawsuit,

16

shall apply in Plaintiff’s subsequent lawsuit in lieu of any other statute of limitations,

17

prescription, or repose.

18

3.

Any state statute that places a cap, ratio, or other limitation upon the amount of

19

non-economic damages or the amount of punitive damages that may be recovered by Plaintiff and

20

applies to Plaintiff’s Complaint filed in the case sub judice, if lower than the amount of the caps,

21

ratios, or other limitations contained in any such state statute, if any, that may apply in Plaintiff’s

22

subsequent lawsuit, shall apply in Plaintiff’s subsequent lawsuit in lieu of any other such state

23

statute.

24

4.

Plaintiff(s) shall not file Plaintiff’s subsequent lawsuit without first producing to

25

counsel for Defendants copies of medical records and hospital records of Plaintiff which allegedly

26

show that Plaintiff was allegedly implanted with one or more medical devices manufactured by

27

Defendant Ethicon, Inc., including the physician’s notes of each one of Plaintiff’s implanting

28

surgeons and treaters whom Plaintiffs consulted about the conditions leading to Plaintiff’s

D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION & [PROPOSED] ORDER RE
DISMISSAL OF PLAINTIFF’S COMPLAINT
SF01/ 782412.1

-3-

CASE NO. 4:11-CV-00698-CW

1
2

surgery(ies).
5.

The Order of the United States District Court for the Northern District of

3

California which severed the parties to the original action in which Plaintiff was a party and

4

transferred the Plaintiff’s claims to this District Court (“Order to sever and transfer”), Order

5

Granting Defendants’ Motion to Sever Under Rule 21 and Transfer Under 28 U.S.C. § 1406(a) or,

6

in the Alternative, 28 U.S.C. § 1404(a), (Apr. 6, 2011), was an appealable order to the United

7

States Court of Appeal for the Ninth Circuit under 28 U.S.C. § 1291. See Coughlin v. Rogers,

8

130 F.3d 1348, 1349 (9th Cir. 1997). Because the time within which Plaintiff may take an appeal

9

from the Order to sever and transfer has run, see Fed. R. App. Pro. 4(a)(1)(A), the Order to sever

10

and transfer is now final and is res judicata between Plaintiff and Defendants as to those issues

11

decided by said Order to sever and transfer. Accordingly, the final Order to sever and transfer

12

will not be treated as a nullity and will not be vacated by this District Court as a result of its

13

conditional dismissal of this action, see National R.R. Passenger Corp. v. International Ass’n of

14

Machinists & Aerospace Workers, 915 F.2d 43, 48 (1st Cir. 1990), and the Order to sever and

15

transfer is entitled to be given stare decisis effect in any forum.

16

6.

Upon being served with a summons and complaint and when answering or

17

otherwise responding in the manner required by law in Plaintiff’s subsequent lawsuit, Defendant

18

may also assert and allege any other defenses that are available under the laws of the forum State

19

in which Plaintiff’s subsequent lawsuit is filed.

20

7.

The parties agree that it would be difficult to calculate actual damages, beyond

21

recovery of costs and attorneys' fees, arising from a material breach of this Agreement. As such,

22

the parties agree that in the event either party breaches this Agreement, which governs the

23

disposition and dismissal of eleven (11) lawsuits, the breaching party shall be subject to one, but

24

only one, legal action for said breach and shall pay to the non-breaching party the sum of $15,000

25

as liquidated damages. The parties agree that this amount constitutes a reasonable estimate of

26

damages and that this amount does not constitute and should not be construed as a penalty.

27
28
D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION & [PROPOSED] ORDER RE
DISMISSAL OF PLAINTIFF’S COMPLAINT
SF01/ 782412.1

-4-

CASE NO. 4:11-CV-00698-CW

1

The failure of Plaintiff or her counsel to adhere to any of the preceding conditions is a

2

material breach of her MUTUAL AGREEMENT AND STIPULATION with Defendants.

3

Dated: September 9, 2011

DRINKER BIDDLE & REATH LLP

4
5

By: /s/ Michelle A. Childers
Michelle A. Childers

6

Attorneys for Defendants
ETHICON, INC. (on its own behalf and behalf
of its Division, ETHICON WOMEN’S
HEALTH & UROLOGY, and erroneously
sued as GYNECARE, INC.); and JOHNSON
& JOHNSON

7
8
9
10
11

Dated: September 9, 2011

GIRARDI | KEESE

12
13

By: /s/ Amanda Kent
Amanda Kent

14
15

Attorneys for Plaintiff
GINA LaFORGE

16
17

ORDER

18
19

PURSUANT TO THE FOREGOING MUTUAL AGREEMENT AND

20

12th
STIPULATION, IT IS SO ORDERED, this the ________ of September 2011.
_________,
BY THE COURT

21
22

By: _____________________________________
Honorable Claudia Wilken
United States District Judge

23
24
25
26
27
28
D RINKER B IDDLE &
R EATH LLP
ATTORNEYS AT LAW
SAN FRANCISCO

JOINT STIPULATION & [PROPOSED] ORDER RE
DISMISSAL OF PLAINTIFF’S COMPLAINT
SF01/ 782412.1

-5-

CASE NO. 4:11-CV-00698-CW