Koch v. Breg, Inc. et al

Filing 143

ORDER granting 137 Motion to Consolidate Cases. Signed by Chief Judge Karen E. Schreier on 4/20/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KELLY J. KOCH,
Plaintiff,
vs.
BREG, INC., a California corporation,
Defendant.

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CIV. 08-4193-KES

ORDER GRANTING PLAINTIFF’S
MOTION TO CONSOLIDATE

Plaintiff, Kelly Koch, moves to consolidate this action with Suhn v. Breg,
Inc., Civ. 08-4190, under Rule 42(a). Defendant Breg resists Koch’s motion.
For the reasons expressed below, the court grants Koch’s motion to
consolidate.
BACKGROUND
Breg manufactures the Breg Pain Care 3200 pump, commonly referred
to as a pain pump. The pain pump was cleared by the FDA for sale to medical
professionals for general surgery applications pursuant to the 510(k)
process.1 It uses a drip mechanism that infuses an anesthetic, such as

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The 510(k) process “imposes a limited form of review on every
manufacturer intending to market a new device by requiring it to submit a
‘premarket notification’ to the FDA[.]” Medtronic, Inc. v. Lohr, 518 U.S. 470, 478
(1996). “If the FDA concludes on the basis of the § 510(k) notification that the
device is ‘substantially equivalent’ to a pre-existing device, it can be marketed
without further regulatory analysis[.]” Id. at 478. The requirements of the
510(k) process are codified at 21 U.S.C. § 360(k). See generally id. (recognizing
that § 360(k) “is also known as a ‘§ 510(k) process,’ after the number of the
section in the original [Medical Device Amendments of 1976] Act”).

bupivacaine, at a rate of 4cc’s per hour. It also allows the patient to
administer a bolus2 dose of the anesthetic.
On August 8, 2005, Koch underwent arthroscopic surgery of his right
shoulder. On December 1, 2005, Suhn underwent arthroscopic surgery of his
right shoulder. After the surgeries, the high volume pain pump manufactured
by Breg was inserted in both Koch’s and Suhn’s shoulder’s joint space to
alleviate their pain. Koch and Suhn were both subsequently diagnosed with
glenohumeral chondrolysis.3 Koch and Suhn brought separate suits against
Breg, alleging various strict liability and negligence claims.4 They now move to
consolidate their cases for trial.
ANALYSIS
The court has the authority to “consolidate the actions” if the “actions
before the court involve a common question of law or fact[.]” See Fed. R. Civ.
P. 42(a)(2). The authority to consolidate cases under Rule 42(a) “ ‘should be
prudently employed as a valuable and important tool of judicial
administration, invoked to expedite trial and eliminate unnecessary repetition

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A bolus is defined as a “single, relatively large quantity of a
substance[.]” Stedman's Medical Dictionary 239 (28th ed. 2006).
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Glenohumeral means “[r]elating to the glenoid cavity and the humerus.”
Stedman's Medical Dictionary at 811. Chondrolysis is the “[d]isappearance of
articular cartilage as the result of disintegration or dissolution of the cartilage
matrix and cells.” Id. at 369.
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The attorneys and the claims are the same in both cases.
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and confusion.’ ” Bendzak v. Midland Nat’l Life Ins. Co., 240 F.R.D. 449, 450
(S.D. Iowa 2007) (quoting Devlin v. Transp. Commc’ns Int’l Union, 175 F.3d
121, 130 (2d Cir. 1999)). Consolidation serves to “avoid unnecessary cost or
delay.” Id. at 450. It is not appropriate to consolidate, however, “if it leads to
inefficiency, inconvenience, or unfair prejudice to a party.” E.E.O.C. v. HBE
Corp., 135 F.3d 543, 551 (8th Cir. 1998). The court has broad discretion in
determining whether to consolidate cases containing a common question of
fact or law. See Enter. Bank v. Saettele, 21 F.3d 233, 235 (8th Cir. 1994) (“The
district court’s broad discretion in ordering the consolidation of matters is not
unbounded, and we will reverse a district court's decision to consolidate for
an abuse of discretion.” (citation omitted)).
There are several common questions of fact at issue in both cases.
First, there is an issue of fact as to whether the pain pump can even cause
the destruction or loss of cartilage. Second, there is an issue of fact as to
whether Breg knew, or should have known, that the use of its pain pump
could result in the destruction or loss of cartilage in a patient’s shoulder.
Finally, there is an issue of fact as to when, if ever, Breg knew or should have
known that the use of its pain pump could result in the destruction or loss of
cartilage in a patient’s shoulder. These common questions of fact will
undoubtedly be disputed at trial. Thus, the court finds that there are

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“common question[s] of law or fact” that support consolidating these cases for
trial. See Fed. R. Civ. P. 42(a).
There are also several witnesses who will be called to testify in both
trials if the cases are separately tried. For example, Dr. Looby, the surgeon for
Koch and Suhn, would testify in both cases. Breg’s causation expert,
Dr. Petty, would testify in both cases as well. Many of the same experts on the
scientific literature and general causation would likely testify in both cases if
the trials were separately tried, and those experts would undoubtably offer
substantially the same testimony in both cases. See Blood v. Givaudan
Flavors Corp., 2009 WL 982022, at *7 (N.D. Iowa Apr. 10, 2009) (recognizing
that the inevitable testimonial “overlap” in separate trials supported
consolidation). Moreover, both cases have completed discovery and are ready
for trial. Cf. Fin-Ag, Inc. v. NAU Country Ins. Co., 2009 WL 44479, at *3 (D.S.D.
Jan. 6, 2009) (refusing to consolidate partly because the two cases were “at
much different stages of preparation and litigation”). The interests of judicial
economy and convenience therefore support consolidation. See Blood, 2009
WL 982022, at *7-8 (“Thus, it is clear that given the near identical
circumstances of these two cases, the savings to the parties, witnesses, and
judicial resources that will result from consolidation will be enormous.”);
Bendzak, 240 F.R.D. at 450 (consolidating two cases because it “would avoid
unnecessary cost, delay, repetition, confusion, and expedite trial”).

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Breg argues that there are factual differences between Koch’s case and
Suhn’s case that demonstrate the need for separate trials. Specifically, Breg
argues that Koch’s medical history before the surgery in question, his medical
history after the surgery, and his damages are different from Suhn’s.
According to Breg, these differences will unduly confuse the jury.
“While each of [p]laintiffs’ specific medical conditions may be different,
those differences and their significance can be explained to a jury and easily
understood.” In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig.,
2010 WL 797273, at *3 (M.D. Ga. Mar. 3, 2010). Moreover, there are only two
plaintiffs in this case. The unrelated evidence can therefore “be presented to a
jury in a manner that is not confusing” by using proper questioning
techniques and identification of exhibits. See id. at *4 (explaining that any
risk of confusion is minimized “so long as the evidence is introduced in an
organized fashion”). Thus, the court finds that any risk of confusion is
minimal and does not require separate trials. See Mary Ellen Enters. v.
Camex, Inc., 68 F.3d 1065, 1073 (8th Cir. 1995) (rejecting the defendant’s
argument that separate trials were necessary because “the complicated
evidence on copyright damages confused the jury”).
Breg also argues that if the cases are consolidated, it will be unfairly
prejudiced with regard to the issue of specific causation. Breg argues that the
jury will be more likely to conclude that Breg’s pain pump caused plaintiffs’

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injuries if their cases are consolidated because the jury will be allowed to
consider evidence from both plaintiffs.
As the United States Supreme Court presumed in the context of a
criminal case, “jurors, conscious of the gravity of their task, attend closely the
particular language of the trial court’s instructions . . . and strive to
understand, make sense of, and follow the instructions given them.” Francis
v. Franklin, 471 U.S. 307, 324 n.9 (1985). Jurors will presumably do the same
in a civil trial. See CSX Transp., Inc. v. Hensley, 129 S. Ct. 2139, 2141 (2009)
(“The jury system is premised on the idea that rationality and careful regard
for the court's instructions will confine and exclude jurors’ raw emotions. . . .
[A]s in all cases, juries are presumed to follow the court's instructions.”
(citation omitted)). And the court shares the view articulated by the District
Court of Iowa, “juries are composed of prudent, thoughtful, and intelligent
individuals[.]” Blood, 2009 WL 982022, at *5. Therefore, any potential for
unfair prejudice to Breg on the issue of specific causation can be limited by a
proper instruction to the jury that the issue of whether Breg’s pain pump
caused Koch’s chondrolysis is to be determined separately from the issue of
whether Breg’s pain pump caused Suhn’s chondrolysis. See Mary Ellen
Enters., 68 F.3d at 1073 (affirming the trial court’s decision to consolidate
where “the court instructed the jury that the trial involved two separate

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actions, and the jury verdict form clearly differentiated between the two
actions”).
There are numerous common questions of fact that support
consolidation. Moreover, the interests of judicial economy and convenience
support consolidation because both cases will rely on many of the same
witnesses and testimony evidence. Finally, the potential for confusion is
minimal, and any potential for unfair prejudice with regard to specific
causation can be avoided with proper jury instructions. Accordingly, it is
ORDERED that Suhn v. Breg, Inc., Civ. 08-4190, and Koch v. Breg, Inc.,
Civ. 08-4193, are consolidated under Suhn v. Breg, Inc., Civ. 08-4190.
IT IS FURTHER ORDERED that future filings be filed under Suhn v.
Breg, Inc., Civ. 08-4190.
Dated April 20, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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