Larson, Steven v. Wright Medical Technology, Inc.

Filing 24

Certified Copy of Conditional Transfer Order. Case closed. Signed by Karen K. Caldwell, Chair of the Panel on 8/7/2020 (voc)

Case MDL No. 2949 Document 134 Filed 08/07/20 Page 1 of 9

FILED

U S DISTRICT COURT
EASTERN DISTRICT ARKANSAS

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

AUG 1 4 2020
JAMES w~cCORMACK, CLERK

By: ~.
IN RE: PROFEMUR HIP IMPLANT
PRODUCTS LIABILITY LITIGATION

~

DEP CLERK.

MDL No. 2949

TRANSFER ORDER

Before the Panel: Plaintiffs in the Eastern District of Arkansas Simpson action and the Western
District of Wisconsin Chadderdon action move under 28 U.S.C. § 1407 to centralize pretrial proceedings
in the Eastern District of Arkansas. These cases concern alleged defects in the Wright Medical and
Microport Profemur line of modular hip implants, which were offered in titanium and cobalt chromium
alloys. Plaintiffs' motion includes the 41 actions listed on Schedule A, 1 which are pending in 25 districts.
Since plaintiffs filed this motion, the parties have notified the Panel of 21 additional potentially related
actions. 2 Wright Medical defendants 3 and MicroPort Orthopedics Inc. oppose centralization. If an MDL
is created, they suggest centralization in the Eastern District of Arkansas.
Plaintiffs in seventeen actions support centralization. They disagree as to selection of transferee
district, but suggest the following: the Eastern District of Arkansas (primary choice of plaintiffs in fifteen
cases, alternative choice of plaintiffs in two cases), the District of Minnesota (primary choice of plaintiffs
in two cases, alternative choice of plaintiffs in five cases), the District of Arizona (alternative choice of
plaintiffs in the District of Arizona Casey action), the Central District of California (alternative choice of
plaintiffs in the Central District of California Bodily action), the District of Massachusetts (the alternative
choice of plaintiffs in two cases). Plaintiff in the Central District of California Burkhart action does not
oppose centralization but requests that her action be excluded from any MDL due to its advanced
procedural posture.
After considering the argument of counsel, 4 we find that the actions in this litigation involve
common questions of fact, and that centralization in the Eastern District of Arkansas will serve the
convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. All
An action pending in the District of Arizona (Mulvania) and on the motion to centralize was
dismissed during the pendency of the motion.
1

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

2

3

Wright Medical Technology, Inc., Wright Medical Group, Inc., and Wright Medical Group, N.V.

In light of the concerns about the spread ofCOVID-19 virus (coronavirus), the Panel heard oral
argument by videoconference at its hearing session of July 30, 2020. See Suppl. Notice of Hearing
Session, MDL No. 2949 (J.P.M.L. July 14, 2020), ECF No. 104.

4

rhis case assigned to District Judge hk<-C
and to Magistrate Judge_t}p!!S~".:.i..1.1.->==------

A TRUE COPY I CERTIFY
JA.\1ES W. McCOR.\1ACK, CLERK

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D.C.

Case MDL No. 2949 Document 134 Filed 08/07/20 Page 2 of 9

-2-

actions involve common factual questions about the design, marketing and performance of the Profemur
line of modular hip implants, including both titanium femoral necks and those made of cobalt chromium
(CoCr). Plaintiffs contend that the modular devices are prone to micromovements that lead to fluid ingress
into the bore, which leads to fretting and corrosion in the stem-neck junction, which in tum leads to
metallosis and increased blood metal levels and, at times, fracture of the devices. Centralization will avoid
duplicative discovery, including costly expert discovery, on such complex issues as the design, testing,
manufacturing, and marketing of the Profemur modular hip implant system and related motion practice.
Further, we note that centralization is consistent with our past decisions in other similar hip implant
dockets that we have centralized in the recent past. See, e.g., MDL No. 2391 - In re: Biomet M2a
Magnum Hip Implant Prods. Liab. Litig.; MDL No. 2768 - In re: Stryker LF/T V40 Femoral Head
Products Liability Litigation.
Wright and Microport oppose centralization for several reasons. They argue that there are
insufficient common fact questions among the actions, that informal cooperation is workable, and that
centralization will prove inefficient given the varying procedural postures of the actions. We are not
persuaded by these arguments. The actions share numerous questions of fact, which is not surprising in
light of the similarities of the titanium and CoCr devices. As plaintiffs note, the taper of the neck, the bore
of the stem, and the tolerances between the neck and stem at their junction are identical across the entire
Profemur family, regardless of the alloy used for the neck component. Moreover, as plaintiffs assert, the
2009 addition of the CoCr modular neck to the Profemur line was a product extension, and defendants'
marketing of the Profemur line was the same, regardless of the alloy of the modular neck. The surgical
techniques that are published by defendants for promotion to surgeons reportedly do not account for any
difference between the alloys. Further, plaintiffs assert that all Profemur devices are distributed with the
same labeling and Information For Use in product packaging, and the Profemur component parts were
manufactured at Wright's facility in Arlington, Tennessee, which was later purchased by Microport.
The number ofactions and involved districts, and the substantial similarity of the claims asserted
by the various plaintiffs, suggest to us that centralization will result in significant efficiency and
convenience benefits for the parties and the courts. There already are several dozen pending cases: 41
cases and 21 potential tag-along actions, with a significant number of plaintiffs' and defense counsel
involved. Including the potential tag-along actions, 49 pending Pro femur cases were filed since 2019.
Placing the actions before a single judge (as opposed to several dozen) will result in a significant savings
of judicial and party resources. The sheer number of counsel, cases and judges involved in this litigation
make informal coordination impractical. As an added benefit, centralization will allow for uniform
resolution of discovery issues and facilitate coordination with the three Tennessee dockets (titanium neck
claims, CoCr neck claims against Wright, and CoCr claims against Microport) that are being coordinated
in Shelby County, Tennessee.
Incorporating the more advanced actions may prove challenging, but doing so appears preferable
at this stage to excluding all longer-pending actions. We are aware that prior rulings concerning motions

Case MDL No. 2949 Document 134 Filed 08/07/20 Page 3 of 9

-3to dismiss 5 and discovery also have the potential to complicate pretrial proceedings in a Profemur MDL.
The advanced procedural status of some cases may weigh in favor of expedited remand for trial once the
transferee judge has had the time to address any common discovery, summary judgment and Daubert
issues. But we need not decide the exact course of pretrial proceedings in the handful of advanced
Profemur actions, as that is a matter dedicated to the discretion of the transferee judge. 6
Without a doubt, there will be some individualized factual issues in each action, but these issues
do not negate the efficiencies to be gained by centralization. We have previously stated that "[a]lmost all
personal injury litigation involves questions of causation that are plaintiff-specific. Those differences are
not an impediment to centralization where common questions of fact predominate." In re: Xarelto
(Rivaroxaban) Prods. Liab. Litig., 65 F. Supp. 3d 1402 (J.P.M.L. 2014). In addition to the specific causes
of the failure of each plaintiffs device, the cases now before us implicate numerous common issues
concerning the development, manufacture, testing, regulatory history, promotion, and labeling of the
Profemur devices. We note that the transferee judge might find it useful, for example, to establish different
tracks for the different alloys and the different modes of failure - e.g., fretting and corrosion and fracture
of the modular neck component.
Plaintiff in the Central District of the California Burkhart action requests exclusion from the MDL.
The parties recently informed the Central District of California that they had reached a settlement of
Burkhart and needed a short time to finalize the paperwork. We will grant the Burkhart plaintiffs request
to exclude her action, as pretrial proceedings likely have concluded in Burkhart. If the parties fail to
finalize the settlement, then they should notify the Panel of the pendency of Burkhart as a potential tagalong action. See Panel Rules 1.l(h), 7.1 and 7.2.
We are persuaded that the Eastern District of Arkansas is the appropriate transferee district for this
litigation. Most plaintiffs and defendants support Eastern District of Arkansas. Two Profemur cases are
pending in this district before Judge Kristine G. Baker, who has not yet had an opportunity to preside over
an MDL docket. Little Rock offers an accessible transferee forum for this litigation. Moreover, the
Eastern District of Arkansas is located near the Wright and Microport defendants' Memphis headquarters,
where relevant documents and witnesses may be found.
IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside of the

Motions to dismiss have been ruled upon in ten actions, but the transferee judge should be able
to account for those cases with narrower claims. Section 1407 does not require a complete identity
or even majority of common factual and legal issues as a prerequisite to centralization. 111 re Satyam
Computer Servs., Ltd., Sec. Litig., 712 F. Supp. 2d 1381, 1382 (J.P.M.L. 2010).
5

Cf In re Mirena IUD Prods. Liab. Litig., 938 F. Supp. 2d 1355, 1357 (J.P.M.L. 2013) ("[T]he
transferee judge is in the best position to incorporate those actions in a manner that accommodates
the progress already made while also addressing the issues raised in the more recently filed actions.
. . . [T]he degree of consolidation or coordination is a matter soundly dedicated to the discretion of
the transferee judge.").

6

Case MDL No. 2949 Document 134 Filed 08/07/20 Page 4 of 9

-4Eastern District of Arkansas are transferred to the Eastern District of Arkansas and, with the consent of
that court, assigned to the Honorable Kristine G. Baker for coordinated or consolidated pretrial
proceedings.
IT IS FURTHER ORDERED that centralization of the action listed on Schedule Bis denied.

PANEL ON MULTIDISTRICT LITIGATION

Chair
Ellen Segal Huvelle
Catherine D. Perry
Matthew F. Kennelly

R. David Proctor
Nathaniel M. Gorton
David C. Norton

Case MDL No. 2949 Document 134 Filed 08/07/20 Page 5 of 9

IN RE: PROFEMUR HIP IMPLANT
PRODUCTS LIABILITY LITIGATION

MDL No. 2949

SCHEDULE A

District of Arizona
CASEY v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 2: 19-05360
Eastern District of Arkansas
MUSTICCHI v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 4:19-00607
SIMPSON, ET AL. v. WRIGHT MEDICAL GROUP, INC., ET AL.,
C.A. No. 5:17-00062
Central District of California
BUCHANAN, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 2: 19-04824
COLE, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 2:20-03993
BODILY v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 5:18-02244
Eastern District of California
BAKER, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 2:20-00823
Southern District of California
HOFER, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 3:18-01991
SIVILLI v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 3:18-02162
District of Colorado
MARSHALL, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 1:19-01883
Northern District of Florida
STOUFFER v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 3:19-03818

Case MDL No. 2949 Document 134 Filed 08/07/20 Page 6 of 9

-A2 -

Northern District of Georgia
SHARIF, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 1:20-01300
Northern District of Indiana
EVANS, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 3:19-00160
Northern District of Iowa
DUMLER, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 6:17-02033
HILL, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 6:20-02032
District of Kansas
BURDOLSKI v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 2:20-02116
District of Maine
KIEF v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 1:18-00035
District of Maryland
WILLIAMS v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 1:20-00578
District of Massachusetts
GARFIELD, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 1:18-11872
MCDONALD v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 1:18-12570
BRADLEYv. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No.1:20-10215
MATUSZKO, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 3:20-10200
JURCZYK v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 4:19-40126
District of Minnesota
MONSON v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 0:18-01282
GALE, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 0:20-01009

Case MDL No. 2949 Document 134 Filed 08/07/20 Page 7 of 9

-A3 District of Montana
MATOSICH v. WRIGHT MEDICAL GROUP, INC., ET AL., C.A. No. 9:19-00016
District of New Jersey
LOPEZ, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 1:19-12583
Southern District of New York
SAFIR v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 1:18-10742
District of Oregon
HASKELL v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 3:19-01563
Western District of Pennsylvania
HARRIS, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 2: 19-00280
District of South Carolina
MILES v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 4:20-00941
District of Utah
BRADSHAW, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 1:16-00108
BURNINGHAM, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 2:17-00092
SMOLKA v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 2:19-00263
Northern District of West Virginia
LAYTON, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 1:20-00083
Eastern District of Wisconsin
RIDOLFI v. WRIGHT MEDICAL TECHNOLOGY, INC., C.A. No. 2:20-00680

Case MDL No. 2949 Document 134 Filed 08/07/20 Page 8 of 9

-A4Western District of Wisconsin
TZAKIS, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 3:19-00545
CHADDERDON, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
ET AL., C.A. No. 3:19-00787
LARSEN v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 3:20-00261
CRAUGH, ET AL. v. WRIGHT MEDICAL TECHNOLOGY, INC.,
C.A. No. 3:20-00270

Case MDL No. 2949 Document 134 Filed 08/07/20 Page 9 of 9

IN RE: PRO FEMUR HIP IMPLANT
PRODUCTS LIABILITY LITIGATION

SCHEDULE B

Central District of California
BURKHART v. WRIGHT MEDICAL TECHNOLOGY, INC., ET AL.,
C.A. No. 2: 17-08561

MDL No. 2949