Benson v. DePuy Orthopaedics, Inc. et al
Filing
27
CERTIFIED MDL TRANSFER ORDER (MDL No. 2197). Signed by MDL Panel on 08/06/2013. (Copies have been distributed pursuant to the NEF - AC)
Case: 1:10-md-02197-DAK Doc #: 585 Filed: 08/06/13 1 of 2. PageID #: 6879
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
Northern District of Ohio
By: s/R Schumitsh
Deputy Clerk
UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: DEPUY ORTHOPAEDICS, INC., ASR HIP IMPLANT
PRODUCTS LIABILITY LITIGATION
James M. Benson v. DePuy Orthopaedics, Inc., et al.,
D. Nevada, C.A. No. 2:13-00713
)
)
MDL No. 2197
TRANSFER ORDER
Before the Panel: Pursuant to Panel Rule 7.1, plaintiff in a District of Nevada action (Benson)
moves to vacate our order that conditionally transferred his action to MDL No. 2197. Responding
defendants1 oppose the motions to vacate.
After considering all argument of counsel, we find this action involves 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 (J.P.M.L.
2010). This action involves injuries from implantation of a DePuy ASR hip implant and clearly falls
within the MDL’s ambit.
Plaintiff does not dispute that his action shares questions of fact with actions pending in MDL
No. 2197. Plaintiff instead bases his arguments against transfer primarily on the pendency of his motion
to remand the action to state court.2 Plaintiff can present his motion for remand, if he chooses to refile
one, to the transferee judge. See, e.g., In re Ivy, 901 F.2d 7, 9 (2nd Cir. 1990); In re Prudential Ins. Co.
of Am. Sales Practices Litig., 170 F. Supp. 2d 1346, 1347-48 (J.P.M.L. 2001).
1
DePuy Orthopaedics, Inc., and DePuy International Ltd.(collectively DePuy); Johnson &
Johnson, Johnson & Johnson International, Johnson & Johnson Services, Inc.; and Precision
Instruments, Inc.
2
After plaintiff filed his motion to vacate, the transferor judge in Benson stayed the action
pending transfer to the MDL and denied the motion to remand without prejudice.
Case: 1:10-md-02197-DAK Doc #: 585 Filed: 08/06/13 2 of 2. PageID #: 6880
-2IT IS THEREFORE ORDERED that pursuant to 28 U.S.C. § 1407, this action is 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
_________________________________________
John G. Heyburn II
Chairman
Kathryn H. Vratil
Marjorie O. Rendell
Lewis A. Kaplan
Paul J. Barbadoro
Charles R. Breyer
Sarah S. Vance
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?