Case MN/0:13-cv Document 30 Filed 03/25/13 Page 1 of 10 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

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1 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 1 of 10 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION IN RE: STRYKER REJUVENATE AND MDL No ABG II HIP IMPLANT PRODUCTS LIABILITY LITIGATION REPLY BRIEF IN SUPPORT OF PLAINTIFF S MOTION FOR TRANSFER OF ACTIONS PURSUANT TO 28 U.S.C I. INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff Robert Davis ( Moving Party ) submits this Reply memorandum in support of his motion to transfer all cases arising out of the Stryker Rejuvenate and ABG II modular-neck hip implant systems to the District of Minnesota. Moving Party and Defendants 1 agree that cases arising from the Rejuvenate hip implant system are appropriate for a multi-district litigation ( MDL ). Furthermore, both Moving Party and Defendants agree generally that the District of Minnesota is an experienced MDL court that is capable of effectively and efficiently overseeing this mass tort litigation. However, Moving Party and Defendants disagree on the scope of the litigation. As detailed below, centralizing both the Rejuvenate and the ABG II modular-neck systems will support judicial efficiency and prevent inconsistent rulings. Finally, Moving Party continues to support the District of Minnesota with The Honorable Donovan W. Frank presiding as the optimal court to oversee this MDL. However, in the 1 Defendants refers to all parties that have been named as a defendant in the currently filed federal actions, including: Howmedica Osteonics Corporation d/b/a Stryker Orthopaedics, Stryker Corporation, Stryker Sales Corporation, Stryker Sustainability Solutions, Inc., Stryker Howmedica Osteonics, American Medical Products, American Medical Products, Inc., Orthopedic Solutions, Inc d/b/a Stryker South Florida Agency, Orthopedic Implant Professionals agent of Stryker South Florida, Orthopedic Implant Consultants, Inc., and South Florida Learning Center, LCC. 1

2 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 2 of 10 alternative, Moving Party joins the Wilkinson Motion and supports the Northern District of Illinois as an appropriate transferee forum. 2 II. COMBINING THE REJUVENATE AND ABG II CASES INTO A SINGLE MDL PROMOTES JUDICIAL ECONOMY AND EFFICIENCY Defendants argue that cases arising from the ABG II modular-neck systems should be excluded from the proposed MDL. Defendants primary argument for excluding ABG II cases is that there were no pending cases in federal courts. However, as of March 25, 2013, there are cases pending in at least three different federal courts alleging injury as a result of Defendants ABG II modular-neck system. 3 Furthermore, Defendants suggest that including the ABG II modular-neck system cases in the proposed MDL would frustrate the purpose of an MDL while plaintiffs conduct a fishing expedition. Defendants characterization is incorrect. In fact, including the Rejuvenate and ABG II modular-neck system in a single MDL enhances judicial efficiency and prevents inconsistent rulings. Furthermore, previous consolidation motions have determined that it is appropriate to include the Rejuvenate and ABG II cases within a single litigation. A. Plaintiffs Have Filed Cases Alleging Injury as a Result of Defendants ABG II Modular-Neck System Defendants note in their Response that there were no pending ABG II modular-neck stem cases filed in federal court. 4 While that may have been true at the time, at least three plaintiffs 2 MDL No. 2441, Docket No Lincoln v. Howmedica Osteonics Corp., --:13-cv-----(D.Mass.); Ruben v. Howmedica Osteonics Corp. et. al., 1:13-cv (N.D. Ill.); Wagner et. a. v. Howmedica Osteonics Corp, 2:13-cv DLB-CJS (E.D. Ky.). 4 MDL No. 2441, Docket No. 25 at 3. 2

3 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 3 of 10 have come forward and filed suits alleging injury as a result of Defendants ABG II modularneck stem. On March 20, 2013, Plaintiff Barbara Ruben filed a lawsuit in the Northern District of Illinois after she was forced to undergo revision surgery to replace her defective ABG II modular-neck system. 5 Also on March 20, 2013, Plaintiffs Gary and Michelle Wagner filed a complaint against Defendants alleging injury as a result of Defendants ABG II modular-neck system. 6 Finally, on March 25, 2013 Plaintiffs Lisa and Brett Lincoln, were in the process of filing a case alleging injury as a result of Defendants ABG II modular-neck system. All three ABG II complaints state the same general factual allegations and legal causes of action as the plaintiffs who have filed suit alleging injury from their Rejuvenate modular-neck systems. Accordingly, Defendants argument that the proposed MDL should not include ABG II cases because no cases were pending is moot. Defendants suggest that it is common for the Panel to deny transfer when only a few cases are pending. However, consolidation of ABG II cases in the proposed MDL is appropriate considering that more than 9,000 ABG II products were recalled by Defendants. In light of the large number of units subject to the recall, and the fact that the recall was initiated less than one year ago, Moving Party expects that many additional ABG II cases will be filed in the near future. Furthermore, this Panel routinely orders centralization involving multiple devices made by a single manufacturer. See In Re: Guidant Corp. Implantable Defibrillators Prod. Liab. Litig. (MDL No. 1715); In Re: Medtronic, Inc., Implantable Defibrillators Prod. Liab. Litig. (MDL 5 Ruben v. Howmedica Osteonics Corp. et al., 12-cv (N.D. Illinois). 6 Wagner et al. v. Howmedica Osteonics Corp., 13-cv-0038 (E.D. Kentucky). 3

4 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 4 of 10 No. 1726); In Re: DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig. (MDL No. 2244); and In Re: Zimmer NexGen Knee Implant Prod. Liab. Litig. (MDL No. 2272). Consolidating the Rejuvenate and ABG II modular-neck stem cases in a single MDL is appropriate here considering that Defendants do not oppose the formation of an MDL. Accordingly, all current and future ABG II modular-neck stem cases should be included with Rejuvenate cases in the proposed MDL. B. The New Jersey Supreme Court Consolidated the Rejuvenate and ABG II Modular-Neck Stem Cases The New Jersey Supreme Court considered and granted a similar request with respect to whether consolidated proceedings are appropriate for the Rejuvenate and ABG II modular-neck system cases. On September 19, 2012, ten plaintiffs with actions filed in New Jersey State Court filed a Request for Multi-County Designation of Cases Involving the Stryker Rejuvenate Hip Stem and the ABG II Modular Hip Stem ( New Jersey Petition ). 7 In the New Jersey Petition, plaintiffs formally requested that the New Jersey Supreme Court designate the Rejuvenate and ABG II cases as a multicounty litigation for centralized management. 8 Upon information and belief, the New Jersey Petition went unopposed by Defendants, including, Plaintiffs request that cases arising from the ABG II modular-neck system be included in the multicounty proceedings. Thereafter, on January 15, 2013, the New Jersey Supreme Court granted the New Jersey Petition and ordered that all pending and future New Jersey state court actions arising out of the use of Stryker Rejuvenate Hip Stem components or ABG II Modular Hip Stem components are designated as multicounty litigation for centralized case management purposes. ( New 7 Exhibit 1 - Application for Multi County Designation. 8 Id. at 4 (emphasis added). 4

5 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 5 of 10 Jersey Order ). 9 As a result, the New Jersey multicounty litigation is titled, In re Stryker Rejuvenate Hip Stem and ABG II Modular Hip Stem Litigation, and includes Rejuvenate and ABG II cases. Upon information and belief, there were no ABG II modular-neck stem cases filed in New Jersey State Court prior to the entry of the New Jersey Order. Defendants attempt to complicate and differentiate the multicounty proceedings in New Jersey and the pending Request for Transfer of federal court actions does not support judicial efficiency and economy. Proceeding with similar litigations in both state court and federal court will promote judicial efficiency and consistent rulings. This is especially true here, where several counsel represent plaintiffs in both state and federal actions. C. Defendants Have Consistently Addressed the Rejuvenate and ABG II Issues Without Differentiating the Two Devices. Defendants Response suggests that including the Rejuvenate and ABG II cases in a single MDL litigation would result in little more than a fishing expedition. 10 Defendants position before this Panel is at odds with the position offered to the FDA, to surgeons, and to patients implanted with these recalled devices. By Defendants own public communications and FDA actions, the Rejuvenate and ABG II modular-neck systems share numerous similarities that warrant a single MDL litigation. First, in April of 2012, Defendants released an URGENT: Field Safety Notice wherein Defendants warned Distributors, Risk Management personnel, and Surgeons about potential hazards of the Rejuvenate and ABG II modular-neck systems. Then, on July 6, 2012, 9 Exhibit 2 Designation of New Jersey State-Court Litigation at 2. (emphasis added) 10 MDL No. 2441, Docket No. 25 at 3. 5

6 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 6 of 10 Defendants issued a public release that it had voluntarily recalled its Rejuvenate and ABG II modular-neck stems, concurrently. 11 In both communications, Defendants make no attempt to distinguish a difference between the devices, recall, adverse effects, or post-market surveillance data. Thereafter, the FDA reclassified Defendants actions as a Class II recall for both devices. 12 Most recently, in January of 2013, Defendants released an Urgent Update Product Recall letter notifying customers and surgeons of new developments that applied to the Rejuvenate and ABG II modular-neck systems. In summary, since the time the Defendants first publicly acknowledged the problems associated with the Rejuvenate and ABG II modular-neck systems, Defendants have made no attempt to distinguish a difference between the Rejuvenate and ABG II modular-neck systems. The devices are substantially similar, and logically belong in the same MDL. D. Defendants Attempt to Delay Transfer of Future ABG II Cases Will Waste Judicial Resources Defendants argue that it is in the interest of judicial efficiency to exclude ABG II cases from this MDL litigation. Therefore, it seems to be Defendants position that the parties, the various district courts where ABG II cases are currently pending, and this Panel, should revisit the entire transfer process at some point in the future when sufficient ABG II cases are on file. Moving Party submits this course of action would be a waste of judicial resources. According to the FDA, more than 9,000 ABG II units were subject to the Class II recall. 13 It stands to reason there will be many ABG II cases filed in the various district courts in coming months and years See Detail.cfm?action=detail&id=62456&w= &lang=eng 13 Id. 6

7 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 7 of 10 Accordingly, combining all current and future Rejuvenate and ABG II modular-neck system cases to conserve judicial resources and resources of all parties involved is appropriate at this time. E. This MDL Should Continue to be Titled, In Re: Stryker Rejuvenate and ABG II Hip Implant Products Liability Litigation. Defendants recommend that the MDL should be re-titled to Rejuvenate Total Hip System Products Liability Litigation. There are two substantive differences between Moving Party s and Defendants' recommended titles. First, Defendants attempt to remove ABG II from the MDL title. However, as explained above, ABG II modular-neck system cases should be combined with the Rejuvenate modular-neck system cases into a single MDL. Therefore, it is appropriate for the title to include the name of both devices. Second, Defendants attempt to remove the manufacturer s name from the title of the litigation. However, the Panel routinely includes the manufacturer s name in product liability litigations involving medical devices. See, e.g., In Re: Wright Medical Technology, Inc., Conserve Hip Implant Products Liability Litigation, MDL No (N.D. Ga.); In Re: Zimmer NexGen Knee Implant Products Liability Litigation, MDL No (N.D. Ill.); In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation, MDL No (N.D. Ind.); In Re: Guidant Corp. Implantable Defibrillators Products Liability Litigation, MDL No (D. Minn.); In Re: Medtronic, Inc. Sprint Fidelis Leads Products Liability Litigation, MDL NO (D. Minn.); In Re: Zimmer Durom Hip Cup Products Liability Litigation, MDL No (D. N.J.); In Re: DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation, MDL 7

8 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 8 of 10 No (N.D. Ohio); and In Re: Boston Scientific Corp. Pelvic Repair System Products Liability Litigation, MDL No (S.D. W.V.). Furthermore, including Stryker in the title is appropriate considering that Defendants refer to themselves as Stryker in nearly every known public communication regarding the device recalls. For example, Defendants refer to themselves as Stryker or Stryker Orthopaedics in the April 2012 Urgent: Field Safety Notice, the July 2012 public release announcing the voluntary recall, and the January 2013 Urgent: Field Safety Notice letter. In addition, Defendants refer to themselves as Stryker throughout their patient website dedicated to the recall, Accordingly, Moving Party requests that MDL litigation continue to be titled In Re: Stryker Rejuvenate and ABG II Hip Implant Products Liability Litigation. III. MOVING PARTY CONTINUES TO SUPPORT THE DISTRICT OF MINNESOTA AS THE APPROPRIATE TRANSFEREE FORUM. IN THE ALTERNATIVE, MOVING PARTY REQUESTS THE NORTHERN DISTRICT OF ILLINOIS. As explained in the initial brief, Moving Party respectfully requests that this Panel transfer all current and future Rejuvenate and ABG II modular-neck system cases to the District of Minnesota. In the alternative, Moving Party joins and supports the Wilkinson Motion for centralized proceedings in the Northern District of Illinois. A. Moving Party and Defendants Agree that the District of Minnesota is an Appropriate Transferee Forum In their Response, Defendants agreed with Moving Party that the District of Minnesota is an appropriate jurisdiction to manage this complex litigation. There are few districts that are comparable with regards to experience, capabilities and past success. As Defendants accurately 8

9 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 9 of 10 note, each individual judge within the District of Minnesota has extensive experience with managing MDLs, class action litigations, and/or complex legal issues related to medical devices. Moving Party continues to respectfully request that this MDL be assigned to The Honorable Donovan W. Frank. Judge Frank has a proven record of successfully resolving products liability litigations, including, In re: Guidant Corp. Implantable Defibrillators Products Liability Litigation (MDL No. 1708) which, like here, involved more than one medical device. Judge Frank s experience overseeing the Guidant litigation, including aggressive litigation leading to the eve of trial, a successful resolution process, a related Qui Tam action and criminal proceedings, will undoubtedly prove to be extremely valuable to this complex products liability litigation. Accordingly, Moving Party continues to request that this MDL be transferred to The Honorable Judge Donovan W. Frank in the District of Minnesota. B. In the Alternative, Moving Party Joins and Supports the Wilkinson Motion Requesting the Northern District of Illinois as the Transferee Court Like the District of Minnesota, the Northern District of Illinois is a jurisdiction with extensive MDL experience. While the Northern District of Illinois presently presides over multiple MDLs, nearly all of the MDLs involve relatively few actions. There are only two MDLs in the Northern District of Illinois with more than 100 actions, including, In Re: Ameriquest Mortgage Co. Mortgage Lending Practices Litigation (MDL No. 1715) where only twenty percent of the total actions remain pending. In addition, and as noted in the Wilkinson Motion, statistics show that the Northern District of Illinois has a relatively low percentage of cases pending for three years or more MDL No. 2441, Docket No. 5-1 at 7. 9

10 Case MN/0:13-cv Document 30 Filed 03/25/13 Page 10 of 10 The Northern District of Illinois history of aggressively moving cases will benefit Plaintiffs and Defendants alike. Accordingly, Moving Party joins the Wilkinson Motion and supports the Northern District of Illinois as an appropriate and desirable transferee jurisdiction for this proposed MDL. IV. CONCLUSION For the reasons set forth above, Moving Party respectfully requests this Panel consolidate all current and future Rejuvenate and ABG II modular-neck system cases and designate the District of Minnesota as the transferee forum with The Honorable Donovan W. Frank presiding. In the alternative, Moving Party requests that this Panel designate the Northern District of Illinois as the transferee forum. Dated: March 25, 2013 Respectfully Submitted, ZIMMERMAN REED, P.L.L.P. /s/ Genevieve Zimmerman Charles Zimmerman, Esq., MN# Genevieve M. Zimmerman, Esq. MN # Jason Johnston, Esq., MN# IDS Center 80 South 8th Street Minneapolis, MN Phone: (612) Fax: (612) Counsel for Plaintiffs: Robert Davis and John Gjerde 10