Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Biomet M2a Magnum Hip Implant Products Liability Litigation

United States District Court, N.D. Indiana, South Bend Division

March 7, 2019

IN RE BIOMET M2a MAGNUM HIP IMPLANT PRODUCTS LIABILITY LITIGATION
v.
BIOMET, INC. et al No. 3:18-CV-258 This Document Relates to MOORE SHRIBERG
v.
BIOMET, INC. et al No. 3:18-CV-259 YOUNG
v.
BIOMET, INC. et al No. 3:18-CV-260 THOMAS
v.
BIOMET, INC. et al No. 3:18-CV-468 KASKAN
v.
BIOMET, INC. et al No. 3:18-CV-469 BRADY
v.
BIOMET, INC., et. al. No. 3:18-CV-672 EASTERLING
v.
BIOMET, INC., et. al No. 3:18-CV-675 HAYDEN
v.
BIOMET, INC., et. al No. 3:18-CV-678 WALCH
v.
BIOMET, INC., et. al No. 3:18-CV-679 ANDREWS
v.
BIOMET, INC., et. al No. 3:18-CV-680 CONNOR
v.
BIOMET, INC., et. Al No. 3:18-CV-683 FITZGERALD
v.
BIOMET, INC., et. al No. 3:18-CV-684 FOWLER
v.
BIOMET, INC., et. al No. 3:18-CV-685 FRANZESE
v.
BIOMET, INC., et. al No. 3:18-CV-686 KELLEY
v.
BIOMET, INC., et. al No. 3:18-CV-691 BAYE
v.
BIOMET, INC., et. al No. 3:18-CV-696 ANDERSON
v.
BIOMET, INC., et. al No. 3:18-CV-698 ALEXANDER
v.
BIOMET, INC., et. al No. 3:18-CV-711 GIFT
v.
BIOMET, INC., et. al No. 3:18-CV-713 MOORE
v.
BIOMET, INC., et. al No. 3:18-CV-714 STONE
v.
BIOMET, INC., et. al 3:18-CV-715 ROBINSON
v.
BIOMET, INC., et. al 3:18-CV-716 HOWELL
v.
BIOMET, INC., et. al 3:18-CV-717

          OPINION AND ORDER

          Robert L. Miller, Jr. Judge

         These 23 cases are part of a docket (MDL-2391) established by the Judicial Panel on Multidistrict Litigation. The cases were filed directly into this MDL docket pursuant to case management orders I entered in 2013 and 2016. Cases in this docket primarily assert personal injury claims by people who received Biomet's M2 a Magnum Hip replacement implants, which the plaintiffs contend are unreasonably dangerous. The plaintiffs in these 23 cases have sued parties I will refer to simply as “Biomet”: Biomet, Inc., Biomet Orthopedics, LLC, Biomet U.S. Reconstruction, LLC, Biomet Manufacturing, LLC and, in some of the cases, Zimmer Biomet Holdings, Inc. Each plaintiff also sued Dr. John Cuckler and Alabama Medical Consultants, Inc., whom I refer to as “the Cuckler defendants.” This order disposes of 41 motions to dismiss in which all briefs allowed by the district rules have been filed.

         In 18 of these cases (all but Moore, Schriberg, Young, Thomas, and Kaskan), the plaintiffs raise claims of fraud in addition to their personal injury claims. The laws of the states of Arkansas, Indiana, Kansas, Maryland, Massachusetts, New York, North Carolina, Oklahoma, South Carolina, Texas, and Wisconsin provide the rules of decision in those 18 cases. Insofar as today's fraud issues are concerned, there is no meaningful difference among the laws of those states. All of the defendants moved to dismiss the fraud claims for failure to state a claim upon which relief can be granted.

         In all 23 cases, the Cuckler defendants also moved to dismiss for lack of personal jurisdiction. I granted similar motions in 2018 and denied the plaintiffs' motions to vacate those dismissals based on the same arguments asserted in these cases.[1] My reasoning applies equally here.

         The plaintiffs live in Arkansas, California, Illinois, Maryland, Massachusetts, Missouri, Nevada, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, Texas, and Wisconsin. The same law firm filed all 23 of these cases.

         The plaintiffs in Moore, Shriberg, and Young moved to file sur-replies relating to the motions to dismiss the Cuckler defendants. Extending the briefing in any multidistrict litigation proceeding runs the risk of delay for scores - at times, thousands - of cases, so I think it better to decide issues on the briefs allowed by the district rules.

         Personal Jurisdiction

         In the usual course of things, these plaintiffs would have filed these complaints in their home states (where they say this court should transfer the cases when their time in the MDL docket is over) and the Judicial Panel on Multidistrict Litigation would have centralized the cases in the Northern District of Indiana. See 28 U.S.C. § 1407. The plaintiffs filed their cases here only because I authorized direct filing as a “procedural mechanism” to increase efficiency and conserve resources. See Wahl v. General Electric Co., 786 F.3d 491, 498 (6th Cir. 2015); In re Watson Fentanyl Patch Prods. Liab. Litig., 977 F.Supp.2d 885, 888 (N.D. Ill. 2013). These dismissal motions, then, look to whether district courts in the plaintiffs' home states would have jurisdiction over the Cuckler defendants. See Kalama v. Matson Navigation Co., Inc., 875 F.3d 297, 302 (6th Cir. 2017) (motions to dismiss for lack of personal jurisdiction “required the [MDL court in] the E.D. of Pennsylvania to decide whether the N.D. of Ohio - the transferor court that would eventually oversee trials in the [] cases - could exercise personal jurisdiction over the [] defendants”); In re Testosterone Replacement Therapy Prods. Liab. Litig., 136 F.Supp.3d 968, 973 (N.D. Ill. 2015) (“In an MDL proceeding, the MDL court [] has jurisdiction...if the originating, transferor courts would have jurisdiction.”).

         The Cuckler defendants moved to dismiss under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. Once such a motion is made, the plaintiff bears the burden of showing the existence of personal jurisdiction. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003).

         Discussion of personal jurisdiction ordinarily looks for minimum contacts between the defendant and the forum court, see World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980), for offense to traditional notions of fair play and substantial justice, see International Shoe v. Washington, 326 U.S. 310, 316 (1945), for constant and pervasive affiliations between the defendant and the forum state that would give rise to general jurisdiction, see Daimler AG v, Bauman, and whether the plaintiff's injuries relate to otherwise insufficient contacts between the defendant and the forum state. See Burger King v. Rudzewicz, 471 U.S. 462, 472-478 (1985). But the plaintiffs' arguments lead in a different direction.

         The plaintiffs don't seem to disagree with the Cuckler defendants' factual assertions that Dr. Cuckler and Alabama Medical Consultants were citizens of Alabama or Florida at every important time, and that neither of the Cuckler defendants themselves has had anything more than sub-minimal contacts with the home states of any of the plaintiffs. Instead, the plaintiffs rely on agreements their lawyers had with the Cuckler defendants in other cases and on the Cuckler defendants' relationship to the Biomet defendants.

         In 2016, these parties and their law firms found themselves addressing dismissal motions in the Collier County, Florida, Circuit Court, based on forum non conveniens grounds. The plaintiffs explain (the Biomet defendants don't entirely agree) the parties agreed to use the case brought by Scott Eanes as something of a bellwether; they would apply the court's ruling in Mr. Eanes's case to the other twelve Collier County cases in which dismissal motions were pending. The Biomet defendants told the Florida judge that Mr. Eanes could file directly into the MDL docket, or in Indiana - Biomet's home state - or in Mr. Eanes's home state of Texas. The Collier County court granted the dismissal motion, noting those three alternatives were open to Mr. Eanes. The plaintiffs also note in passing that there are twelve cases in this MDL docket in which the Cuckler defendants haven't moved to dismiss for lack of personal jurisdiction.

         The plaintiffs view the Cuckler defendants' concession in the Collier County cases as consent to be sued in a plaintiffs' home state, whatever state that might be. The plaintiffs cite no authority for that argument, and I can't imagine what rule of law any such authority might support. In essence, the plaintiffs argue that because the Cuckler defendants agreed that Scott Eanes could sue them in his home state, they must be found to have consented to be sued in any state of the union in which a plaintiff was a citizen. Such a rule might arise from the plaintiffs all being represented by the same law firm, but it's not intuitively clear why that should be. Perhaps such a rule would be limited to cases in which plaintiffs bring claims similar to what Mr. Eanes alleged in Collier County, Florida, but again, it's not clear why that should affect someone else's right to sue the Cuckler defendants in some other state.

         The law in these cases is what logic suggests: “[a] party's consent to jurisdiction in one case...extends to that case alone.” Klinghoffer v. S. N.C. Achille Lauro, 937 F.2d 44, 50 n.5 (2d Cir. 1991); see also Torrent Pharmaceuticals Ltd v. Daiichi Sankyo, Inc., 2016 WL 3976992, *3-4 (N.D. Ill. 2016) (a defendant's consent to a district court exercising personal jurisdiction for a first litigation does not extend to other litigations, even where there may be overlapping subject matter). There's no evidence to suggest that the Cuckler defendants ever consented to being sued in the plaintiffs' home states in these cases, or that they made any representations to the contrary to plaintiffs' counsel.

         In their second argument, the plaintiffs contend that the Cuckler defendants are subject to suit in the plaintiffs' home states, not because of the Cuckler defendants' individual contacts with those states, but because of Biomet's contacts. The plaintiffs point to the “stream of commerce” theory of minimum contacts as discussed in In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Product Liability Litigation, 888 F.3d 753 (5th Cir. 2018). As the court of appeals explained, “That doctrine recognizes that a defendant may purposely avail itself of the protection of a state's laws-and thereby will subject itself to personal jurisdiction-'by sending its goods rather than its agents' into the forum.” 888 F.3d at 778 (quoting J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 882 (2011)). The DePuy Orthopaedics court held that DePuy's corporate parent, Johnson & Johnson, was involved in the design, marketing, sale and financing of the Pinnacle metal-on-metal hip implant to such an extent that the courts of Texas, where the plaintiff had received the implant, had personal jurisdiction over Johnson & Johnson. Id. at 780. I assume, solely for purposes of today's ruling, that the “stream of commerce” theory reflects current law. But see Wilson v. Nouvag GmbH, 2018 WL 1565602, at *15-16 (N.D. Ill. Mar. 30, 2018).

         But Johnson & Johnson's role in the Pinnacle hip dwarfs the Cuckler defendants' roles in the Biomet M2a hip implants. Johnson & Johnson had merged subsidiary corporations, assembled design teams from multiple subsidiaries, transferred a patent to DePuy, edited and approved DePuy's advertising and public statements, paid for promotional activities, set up its own website and conducted a national satellite telecast promoting the product, called the product its own, and put its own logo on the packaging.

         In contrast, the plaintiffs allege that the Cuckler defendants helped design, market, test, and promote the Biomet hip, helped train surgeons to implant the device, and helped design tools to be used for implementation. The Cuckler defendants have, the plaintiffs allege, made millions of dollars in royalties from the Biomet M2a hip. But they are entirely separate from the Biomet defendants: neither owns or controls the other. The Cuckler defendants didn't control the marketing, sale, or distribution of the Biomet hip, and unlike Johnson & Johnson, the Cuckler defendants did not themselves place, or fund the placement of, the Biomet M2a hip system into the stream of commerce.

         The Cuckler defendants have too few contacts with the plaintiffs' home states for personal jurisdiction to attach in those states, under either a general jurisdiction theory or a “stream of commerce” specific jurisdiction theory. They are entitled to dismissal of the complaints insofar as they are sued. Of course, this ruling doesn't affect any ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.