Craig et al v. Portland Orthopaedics Limited et al

Filing 35

ORDER signed by Judge Rudolph T. Randa on 9/9/2015 DENYING 25 Defendant Symmetry Medical Inc.'s Motion to Sever. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
FRANKLIN CRAIG and GERRI CRAIG,
husband and wife; JEROME JANUSZ and
SHARON JANUSZ, husband and wife; and
PATRICE JARDANOWSKI, a single person,
Plaintiffs,
-vs-

Case No. 15-C-294

PORTLAND ORTHOPAEDICS LIMITED,
PORTLAND ORTHOPAEDICS Inc.,
SYMMETRY MEDICAL, Inc., d/b/a
SYMMETRY MEDICAL OTHY, SYMMETRY
OTHY, OTHY; MIPRO US, Inc., MAXX HEALTH, Inc.;
MAXX ORTHOPEDICS, Inc., PLUS ORTHOPEDICS;
SMITH & NEPHEW, Inc.;
and JOHN DOE CORPORATIONS 1-50,
Defendant.
DECISION AND ORDER
Jerome Janusz, Franklin Craig, and Patrice Jardanowski all
underwent hip replacements with the M-Cor Modular Hip System that
failed within three to four years of their respective surgeries. In all
instances, the M-Cor femoral neck fractured and broke into two pieces,
requiring a complete and total hip revision. Janusz, Craig, 1 and
Jardanowski jointly sued a series of entities that either designed,
The spouses of Janusz and Craig also joined this lawsuit, but their claims are
derivative and therefore unimportant to the Court’s analysis.
1

manufactured, sold, and/or distributed the M-Cor, alleging negligence and
strict liability. One of those defendants – Symmetry Medical, Inc. – moves
to sever the plaintiffs’ claims into separate civil actions. For the reasons
that follow, this motion is denied.
Permissive joinder is governed by Rule 20 of the Federal Rules of
Civil Procedure, which provides that persons may join in one action as
plaintiffs if “they assert any right to relief jointly, severally, or in the
alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences,” and if “any question of
law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P.
20(a)(1)(A), (B). The standard for permissive joinder is liberal. Eclipse Mfg.
C. v. M & M Rental Ctr., Inc., 521 F. Supp. 2d 739, 744 (N.D. Ill 2007).
“Although there are few cases within the Seventh Circuit articulating a
precise standard, ‘language in a number of decisions suggests that the
courts are inclined to find that claims arise out of the same transaction or
occurrence when the likelihood of overlapping proof and duplication in
testimony

indicates

that

separate

trials

would

result

in

delay,

inconvenience, and added expense to the parties and to the court.’” Id.
(quoting 7 Wright & Miller, Fed. Practice & Procedure § 1653 (3d ed.
2001)).
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All three of the plaintiffs suffered the same injury, by the same
product, that failed in the same way. Moreover, the defendants are elderly
and were leading sedentary lives at the time of their respective injuries;
the same doctor installed the M-Cor in Janusz and Craig; and the doctor
who installed Jardanowski’s hip followed similar surgical procedures.
Accordingly, there is significant factual overlap between and among the
plaintiffs’ claims. Indeed, the plaintiffs indicate that they will call the same
expert and the same witnesses to prove that the M-Cor hips were defective.
Thus, there are common legal questions, common factual questions, and
the plaintiffs’ claims all arise out of the same transaction or occurrence. If
necessary, the Court can exercise its discretion at a later date to order
separate trials on particular issues. See Fed. R. Civ. P. 42(b).
Symmetry’s motion to sever [ECF No. 25] is DENIED.
Dated at Milwaukee, Wisconsin, this 9th day of September, 2015.
SO ORDERED:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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