Fox, Kathryn v. Smith & Nephew, Inc.

Filing 15

Conditional Transfer Order (Copy). Signed by Sarah S. Vance, Chair of the Panel on 4/5/2017. (kwf)

UNITED STATES J UDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: SMITH & NEPHEW BHR & R3 HIP
IMPLANT PRODUCTS LIABILITY LITIGATION

MDL No. 2775

TRANSFER ORDER

Befor e the Panel: Plaintiffs in eight actions listed on Schedule A move under 28 U.S.C.
§ 1407 to centralize pretrial proceedings in this litigation in the District of Maryland or, alternatively,
the Southern District of Mississippi.1 The motion encompasses twenty-eight actions pending in
nineteen districts, as listed on Schedules A and B.2 The Panel also has been notified of eleven
related actions pending in eleven districts.3
These actions involve products liability claims relating to components of the Birmingham
Hip Resurfacing (BHR) system, the R3 acetabular system, or some combination of a BHR
component and other hip implant components. Movants initially sought centralization of all these
actions in a single MDL. Movants have changed their position and now seek centralization of only
the actions involving claims relating to a BHR component. Plaintiffs in twelve actions and potential
tag-along actions support the motion. Most of these plaintiffs, like movants, seek centralization of
only the BHR actions. They suggest a number of potential transferee districts, including the District
of Maryland, the Southern District of Mississippi, the Western District of Missouri, the Eastern
District of North Carolina, the Western District of Oklahoma, and the Northern District of Texas.
Plaintiffs in three actions—the McAnneny and LaFountain actions in the District of
Connecticut and the Raab action in the Southern District of West Virginia—oppose inclusion of their
actions in the MDL, primarily because they assert claims pertaining to non-BHR components.

1

Movants are plaintiffs in Central District of California Rand, District of Colorado Kruse,
Northern District of Illinois Hand, Eastern District of Kentucky Crews, Northern District of Ohio
Grazia, Southern District of Texas Leblanc, District of Utah Marion, and Eastern District of
Wisconsin Zingler. In their initial motion, movants indicated that they were “open” to centralization
in the District of Colorado, the Northern District of Illinois, the District of Utah, and the Southern
District of West Virginia. At oral argument, counsel advocated only for centralization in the District
of Maryland or the Southern District of Mississippi.
2

The motion initially included three additional actions. One was remanded to state court,
while two others were dismissed.
3

These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h),
7.1, and 7.2.

-2Defendant Smith & Nephew, Inc. (Smith & Nephew) opposes centralization. Alternatively, Smith
& Nephew argues that any MDL should be limited to actions relating only to BHR components and
centralized in the Western District of Tennessee.
On the basis of the papers filed and hearing session held, we find that the actions listed on
Schedule A involve common questions of fact, and that centralization in the District of Maryland
will serve the convenience of the parties and witnesses and promote the just and efficient conduct
of this litigation. These actions share factual questions concerning the design, manufacture,
marketing or performance of Smith & Nephew’s BHR system. Specifically, plaintiffs focus on
complications arising from the use of a cobalt-chromium alloy in the manufacture of the BHR
components. Plaintiffs allege that they have suffered pain, adverse local tissue reaction,
pseudotumors, bone and tissue necrosis, metallosis, or other symptoms, often necessitating revision
surgery. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings
(including with respect to discovery, privilege, and Daubert motion practice); and conserve the
resources of the parties, their counsel, and the judiciary.
Smith & Nephew asserts several arguments against centralization. First, it opposes
centralization because these actions involve different products. That objection, though, is essentially
moot given that movants (and the other supporting plaintiffs) now seek to centralize only actions
involving BHR components. We agree that actions—such as the Cochran, Tipsord, and LaFountain
actions listed on Schedule B—that do not involve claims relating to BHR components should be
excluded from this MDL. The BHR components were subject to the rigorous premarket approval
procedure by the U.S. Food and Drug Administration, whereas the other hip implant components at
issue in these actions were cleared for marketing under the more lenient Section 510(k) procedure.
See Medtronic, Inc. v. Lohr, 518 U.S. 470, 477-79 (1996) (comparing the PMA and 510(k)
procedures). The non-BHR actions will be subject to different discovery and pretrial motion
practice. Accordingly, this MDL shall include only actions asserting a claim as to a BHR
component, and we shall rename this MDL “In re: Smith & Nephew Birmingham Hip Resurfacing
(BHR) Hip Implant Products Liability Litigation.”
Smith & Nephew also argues that the primary dispute in the BHR actions is whether
plaintiffs’ claims are preempted by federal law. Defendant contends that the individual issues
involved in determining whether a parallel state law claim exists and has been pled in each action
would overwhelm the questions common to the preemption analysis. We suspect that the
preemption analysis will be more similar from case to case than Smith & Nephew suggests. The
same preemption analysis will be conducted in each action, and state tort laws that share similar
elements can be grouped together for analysis. To the extent these actions survive Smith &
Nephew’s preemption challenges, discovery is likely to be complex, expert-intensive, and will
benefit from centralization.
Smith & Nephew also insists that this motion is untimely because litigation involving its hip
implants has been ongoing since 2010. But there are 34 BHR actions (including the potential tagalong actions) pending in 25 districts across the country. Most of these actions were filed only

-3recently and remain in their infancy. Centralization of these actions, therefore, is not untimely. Nor
is informal coordination preferable to centralization in this instance, given the number of involved
districts and parties.
Turning to the opposing plaintiffs, we already have explained why the LaFountain action will
be excluded from this MDL. In contrast to LaFountain, both McAnneny and Raab include
allegations relating to BHR components. In McAnneny, plaintiff alleges that the BHR components
were defective because they were mislabeled with the wrong size, and he attributes his alleged
metallosis to non-BHR components installed during a revision surgery. Therefore, McAnneny is
unlikely to share many common questions of fact with the BHR actions.
Unlike McAnneny, the Raab action involves claims similar to those in the other BHR actions,
as well as claims relating to another hip implant component associated with a full hip replacement
(the Modular Femoral Head). Raab, though, is quite advanced, with discovery soon to close and trial
scheduled to begin in less than six months. Transfer of Raab at this point would not promote the
goals of Section 1407. Accordingly, both McAnneny and Raab will be excluded from the MDL.
We select the District of Maryland as the appropriate transferee district for this litigation.
The district is a convenient and accessible forum for this nationwide litigation. Two actions on the
motion are pending in the District of Maryland, including the first-filed Williams action. The
Honorable Catherine C. Blake, who presides over both actions, is an experienced MDL judge with
the willingness and ability to manage this litigation efficiently. Further, as Judge Blake is presiding
over one of the most procedurally-advanced actions, she is well situated to structure this litigation
so as to minimize delay and avoid unnecessary duplication of discovery and motion practice.
IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
the District of Maryland are transferred to the District of Maryland and, with the consent of that
court, assigned to the Honorable Catherine C. Blake for coordinated or consolidated pretrial
proceedings; and
IT IS FURTHER ORDERED that MDL No. 2775 is renamed “In re: Smith & Nephew
Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation”; and

-4IT IS FURTHER ORDERED that transfer of the actions listed on Schedule B is denied.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

IN RE: SMITH & NEPHEW BHR & R3 HIP
IMPLANT PRODUCTS LIABILITY LITIGATION

SCHEDULE A

Central District of California
RAND v. SMITH & NEPHEW, INC., C.A. No. 2:16-09383
District of Colorado
HUNT v. SMITH & NEPHEW, INC., C.A. No. 1:16-02401
KRUSE, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 1:16-03117
Northern District of Illinois
LAVERTY, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 1:15-09485
HAND, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 1:17-00432
Eastern District of Kentucky
CREWS v. SMITH & NEPHEW, INC., C.A. No. 5:16-00471
District of Maryland
WILLIAMS, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 1:14-03138
TWIGG, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 1:17-00256
Eastern District of Michigan
PESICK v. SMITH & NEPHEW, INC., C.A. No. 2:17-10219
GAFFKE v. SMITH & NEPHEW, INC., C.A. No. 2:17-10246
Southern District of Mississippi
SWITZER v. SMITH & NEPHEW, INC., C.A. No. 1:16-00351
Western District of Missouri
TINER v. SMITH & NEPHEW, INC., C.A. No. 6:17-03021

MDL No. 2775

-A2Northern District of New York
BALCH, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 5:16-00112
Eastern District of North Carolina
REDICK, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 7:17-00015
Northern District of Ohio
GRAZIA v. SMITH & NEPHEW, INC., C.A. No. 1:16-03051
Southern District of Texas
TAYLOR, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 2:17-00038
LEBLANC v. SMITH & NEPHEW, INC., C.A. No. 4:17-00022
District of Utah
MARION, ET AL. v. SMITH & NEPHEW, C.A. No. 1:15-00096
Western District of Virginia
GOWIN v. SMITH & NEPHEW, INC., C.A. No. 6:16-00061
Southern District of West Virginia
LEWIS v. SMITH & NEPHEW, INC., C.A. No. 2:16-11631
STARCHER, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 2:17-00609
Eastern District of Wisconsin
ZINGLER v. SMITH & NEPHEW, INC., C.A. No. 1:16-01599
Western District of Wisconsin
FOX v. SMITH & NEPHEW, INC., C.A. No. 3:16-00798

IN RE: SMITH & NEPHEW BHR & R3 HIP
IMPLANT PRODUCTS LIABILITY LITIGATION

SCHEDULE B

District of Connecticut
LAFOUNTAIN v. SMITH & NEPHEW, INC., C.A. No. 3:14-01598
MCANNENY v. SMITH & NEPHEW, INC., C.A. No. 3:17-00012
Central District of Illinois
COCHRAN v. SMITH & NEPHEW, INC., C.A. No. 1:16-01121
TIPSORD, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 1:16-01339
Southern District of West Virginia
RAAB, ET AL. v. SMITH & NEPHEW, INC., C.A. No. 2:14-30279

MDL No. 2775