After 8 years of litigation in the DePuy hip litigation in MDL 2197 in Ohio, the 6th Circuit Court of Appeals abruptly threw out twelve cases against DePuy Orthopaedics for manufacturing defective hip replacements. “Here, even though nearly eight years have passed since the plaintiffs sued, all now recognize that the district court lacked diversity jurisdiction from the start. We thus vacate the district court’s judgments,” the court said. “Federal courts must catch jurisdictional defects at all stages of a case, even when substantial resources have already been invested in it.” The problem was that the plaintiffs are citizens of either the United Kingdom or Spain. DePuy International is incorporated in the United Kingdom and has its principal place of business there. “On these facts, the plaintiffs cannot satisfy 28 USC § 1332(a)(2) or (a)(3). Section 1332(a)(2) will not work because citizens of foreign states fall on both sides of the dispute and so complete diversity is lacking,” the court said. The Case is Linda Boal v. DePuy, Case Nos. 19-3494/3501/3503/3504/3505/3506/3507/3508/3510/3511/3512/3513.
8,500 cases, 12,000 plaintiffs
Since 2010, the federal court for the Northern District of Ohio has been the home of multidistrict litigation involving the DePuy ASR XL Acetabular Hip System, a medical device used in hip-replacement surgeries. Plaintiffs charge that this device is defective and that the defendants gave inadequate warnings about its risks. At its peak, the multidistrict litigation contained more than 8,500 cases with more than 12,000 plaintiffs. These plaintiffs sued six defendants:
- DePuy Orthopaedics, Inc.
- DePuy, Inc.
- DePuy International Limited
- Johnson & Johnson
- Johnson & Johnson Services, Inc.
- Johnson & Johnson International
Residents of the United States litigated most of these cases. In late 2013, the defendants entered into a $44 billion agreement with this group of plaintiffs. The district court has since implemented the agreement and appointed an administrator to process thousands of claims. The trial court dismissed the 12 cases under the non convenes doctrine, a Latin phrase meaning inconvenient forum. The court found that Spanish law likely applied to the claims and that the courts there were an adequate forum for the consumers, the opinion said. The court reasoned that the plaintiffs were residents of Spain; that their hip-replacement surgeries and follow-up care had occurred there; that the case-specific evidence was located there; and that Spanish law likely applied. It also found that Spanish courts provided an adequate forum for the plaintiffs and that the defendants had not waited too long in filing their motions. “The plaintiffs thus seek to create jurisdiction by amending their complaints to add a new federal claim. Section 1653’s text and the case law interpreting it show that the statute does not permit this kind of amendment,” the court said. The plaintiff attorneys on the case included E. Aaron Sprague, Creed & Gowdy, P.A., Jacksonville, Florida, and Jeffrey L. Haberman, Schlesinger Law Offices, P.A., Fort Lauderdale, Florida. DePuy’s lawyers are Benjamin C. Sassé, Tucker Ellis LLP, Cleveland, Ohio and Benjamin C. Sassé, Kristen L. Mayer, Tucker Ellis LLP, Cleveland, Ohio.