Benson v. DePuy Orthopaedics, Inc. et al

Filing 25

ORDER that 2 Motion to Stay is GRANTED. FURTHER ORDERED that 5 Motion to Remand to State Court is DENIED without prejudice. FURTHER ORDERED that 11 Motion for Expedited Hearing is DENIED as moot. Signed by Chief Judge Robert C. Jones on 5/28/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES M. BENSON,
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Plaintiff,
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vs.
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DEPUY ORTHOPAEDICS et al.,
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Defendants.
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2:13-cv-00713-RCJ-VCF
ORDER

This case arises out of the voluntary recall of an artificial hip produced by Defendant

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DePuy Orthopaedics, Inc. (“DePuy”). Plaintiff brought the present class action against DePuy

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and others in state court. Defendants removed. Defendants have asked the Court to stay the case

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pending a determination by Judge Katz of the U.S. District Court for the Northern District of

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Ohio whether to transfer the present case to MDL No. 2197, In re: DePuy Orthopaedics, Inc.,

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ASR Hip Implant Products Liability Litigation (the “MDL Case”) for pretrial proceedings.

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Plaintiff has asked the Court to remand for lack of diversity. Defendants note that the only non-

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diverse Defendant in the present case is a Nevada distributor, Precision Instruments, Inc.

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(“Precision”), who is joined as a Defendant along with the manufacturer based on negligence and

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strict liability theories. Defendants argue that Precision is fraudulently joined because federal

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law preempts state law failure-to-warn claims in cases like the present one, where it would be a

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violation of federal law to alter the federally mandated label in any way. See generally PLIVA,

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Inc. v. Mensing, 131 S. Ct. 2567 (2011). Defendants argue that at a minimum the MDL judge

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should determine this issue, because the ruling will affect many cases and ensure a uniform

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ruling on the important preemption issue. The Court agrees and will stay the case pending the

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relevant determinations by the MDL judge. The previous ruling by another judge of this District

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not to stay a related case appears to have been made before the Supreme Court’s ruling in PLIVA,

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Inc. v. Mensing, 131 S. Ct. 2567 (2011), which case may control the federal preemption issue.

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Although Plaintiff is correct that subject matter jurisdiction is better determined locally as a

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general matter, here the preemption issue under the Supremacy Clause will determine remand in

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many cases throughout the country. It is more efficient to obtain a common answer to the

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question.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Stay (ECF No. 2) is GRANTED.

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IT IS FURTHER ORDERED that the Motion to Remand (ECF No. 5) is DENIED

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without prejudice.
IT IS FURTHER ORDERED that the Motion for Expedited Hearing (ECF No. 11) is
DENIED as moot.

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IT IS SO ORDERED.

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Dated this 28th day May, 2013.
Dated this 14th day of of May, 2013.

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_____________________________________
ROBERT C. JONES
United States District Judge

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