Perry v. Luu

• Decision Date: 02 July 2013
• Docket Number: Case No.: 1:13-cv-00729 - AWI - JLT
• Court: U.S. District Court — Eastern District of California
• Parties: COLLEEN M. PERRY and PATRICK PERRY, Plaintiffs, v. HUNG T. LUU, M.D.; JOHNSON & JOHNSON, A NEW JERSEY CORPORATION, INC.; ETHICON, INC., A NEW JERSY CORPORATION; AND DOES 1 TO 60, Defendants.

COLLEEN M. PERRY and PATRICK PERRY, Plaintiffs,

v. HUNG T. LUU, M.D.; JOHNSON & JOHNSON, A NEW JERSEY CORPORATION, INC.;ETHICON, INC., A NEW JERSY CORPORATION; AND DOES 1 TO 60, Defendants.

Case No.: 1:13-cv-00729 - AWI - JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: July 2, 2013

ORDER GRANTING PLAINTIFFS' MOTION TO

REMAND

(Doc. 7)

ORDER DENYING DEFENDANTS' MOTION TO

STAY AS MOOT

Defendants Johnson & Johnson and Ethicon, Inc. (collectively, "Defendants") removed this action, asserting the Court has jurisdiction because Defendant Luu was fraudulently misjoinded. Defendants request the Court stay the action pending a determination by the Judicial Panel on Multidistrict Litigation. (Doc. 4)

Plaintiffs Colleen Perry and Patrick Perry oppose the entry of a stay. (Doc. 10). Plaintiffs argue this Court lacks diversity jurisdiction because Defendant Luu, a citizen of California, is properly joined. Thus, Plaintiffs seek a remand of the action to Kern County Superior Court. (Doc. 7).

For the reasons set forth below, Plaintiffs' motion to remand is GRANTED, and Defendants' motion to stay is MOOT.

I. Factual and Procedural Background

Plaintiffs filed a complaint in Kern County Superior Court, Case No. S-1500-CV-279123, on April 11, 2013.¹ (Doc. 1-4, Exh. A). Plaintiffs alleged Ethicon and Johnson & Johnson designed, manufactured, packaged, labeled, marketed, sold, and distributed a poloprophylene mesh vaginal implantation known as Gynecare TVT Abbrevo or the "Sling System." (Doc. 1-4 at 12, ¶11). Plaintiffs assert the Sling System "has high failure, injury, and complication rates, fails to perform as intended, and requires frequent and often debilitating revision surgeries, and has caused severe and irreversible injuries, conditions, and damage to a significant number of women, including Plaintiff [Mrs. Perry]." (Id. at 13, ¶16).

According to Plaintiffs, the Food and Drug Administration "issued a Public Health Notification that described over a thousand (1,000) complaints (otherwise known as 'adverse events') that had been reported over a three-year period relating to the Sling System and other similar products." (Doc. 1-4 at 14, ¶19). Plaintiffs allege the FDA issued a Safety Communication on July 12, 2011, in which the FDA "concluded that serious complications associated with surgical mesh for transvaginal repair of pelvic organ prolapse were 'not rare.' (Id. at ¶20). Plaintiffs assert Defendants "suppressed this information and failed to accurately and completely disseminate or share this and other information with others including Plaintiff," and "failed to provide sufficient warnings and instructions that would have put Plaintiff . . . on notice of the dangers and adverse effects caused by implantation of the Sling System." (Id. at 14, 16 ¶¶22, 34).

Plaintiffs allege that "prior to March 23, 2011, "Defendant Luu knew or should have known, the Sling System had high failure, injury, and complication rates, failed to perform as intended, required frequent and often debilitating additional surgeries, and has caused severe and irreversible injuries, conditions, an damage to significant number of women." (Doc. 1-4 at 16, ¶37). However, Dr. Luu"recommended the Sling System to [Mrs. Perry] as appropriate and safe." (Id. at 15, ¶39). Mrs. Perry was implanted with the Sling System on March 23, 2011. (Id. at ¶40). According to Plaintiffs, "As a result of the implantation of the Sling System, [Mrs. Perry] suffered and will continue to suffer serious bodily injuries, including pain, discomfort, pressure, difficulty voiding urine, continued incontinence, discharge, scarring, infection, odor, and bleeding." (Id. at ¶42). Further, Plaintiffs allege Mr. Perry has suffered a loss of consortium. (Id. at ¶43).

For the foregoing, Plaintiffs raise the following causes of action: (1) medical malpractice against Dr. Luu; (2) failure to warn, (3) design defect, (4) negligence, (5) negligent failure to recall, and (6) negligent misrepresentation against Ethicon and Johnson & Johnson; and (7) loss of consortium against all defendants. (See generally Doc. 1-4 at 17-25).

Defendants Ethicon and Johnson & Johnson filed a Notice of Removal of the action on May 16, 2013, thereby initiating the action in this Court. (Doc. 1). Defendants asserted "Dr. Luu's consent to remove [was] not necessary because he is fraudulently misjoined in this action." (Id. at 2-3, 6) (citing Enrich v. Touche Ross & Co., 846 F.2d 1190, 1193 at n.1 (9th Cir. 1988); Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353 (11th Cir. 1996)). Accordingly, Defendants contend the Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 "because this is a civil action between citizens of different states in which the amount in controversy exceeds $75,000, exclusive of interest and costs." (Id. at 3).

The Judicial Panel on Multidistrict Litigation has established several Multidistrict Litigation proceedings for mesh products, including the product identified in Plaintiff's complaint. On February 7, 2012, the JPML issued a Conditional Transfer Order centralizing actions related to pelvic mesh products in the Southern District of West Virginia before the Honorable Joseph Goodwin in MDL No. 2327 for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. In re: American Medical Systems, Inc., Pelvic Repair System Productions Liability Litigation, 844 F.Supp.2d 1359, 1362 (J.P.M.L. 2012). Defendants report: "There are now thousands of cases pending in the Ethicon MDL, including several originating in the Central District of California alleging amounts in controversy in excess of $75,000." (Doc. 1 at 5) (citing Transfer Orders entered in Tyler v. Ethicon Inc. et al., No. 2:11-cv-09525 (C.D. Cal. Feb. 22, 2012); De La Torre et al. v. Johnson & Johnson Inc. et al., No. 2:12-cv-01620 (C.D. Cal. Mar. 16, 2012); Evans v. Ethicon, Inc. et al., No. 2:12-cv-02646(C.D. Cal. Apr. 18, 2012); Holmes v. Ethicon Inc. et al., No. 2:12-cv-02647 (C.D. Cal. Apr. 18, 2012)).

On May 17, 2013, Defendants filed a notice with the JPML identifying Plaintiffs' case as possible "tag-along" action to MDL No. 2327. (Doc. 5, Exh. B). The JPML determined the action "involve[s] questions of fact that are common to the actions previously transferred to the Southern District of West Virginia and assigned to Judge Goodwin." (Doc. 5, Exh. C). Accordingly, the JPML conditionally transferred Plaintiff's case to MDL No. 2327 on May 22, 2013. Id. Plaintiffs filed a Notice of Opposition to the Conditional Transfer Order on May 29, 2013. (Doc. 17, Ex. E). Also, Plaintiffs filed a Motion to Vacate the Conditional Transfer Order on June 10, 2013. The parties are currently awaiting a hearing date from the JPML. Defendants seek a stay of the action pending a decision by the JPML, while Plaintiffs seek a remand of the action to Kern County Superior Court.

Notably, the parties disagree whether the Court should address the matter of its jurisdiction prior to the motion to stay, or whether the issue of jurisdiction should be reserved for consideration by the MDL Panel. According to Defendants, "Courts frequently grant stays pending a decision by the MDL Panel regarding whether to transfer a case." (Doc. 4-1 at 3) (quoting Good v. Prudential Ins. Co. of Am., 5 F. Supp. 2d 804, 809 (N.D. Cal. 1998)). Defendants note several courts stayed proceedings arising under similar circumstances. Id. at 4-5 (citing, e.g., Rubio v. Arndal, 2013 WL 796669, at *2 (E.D. Cal. Mar. 4, 2013); Nichols v. DePuy Orthopaedics, Inc., 2011 WL 5335619, at *2-3 (N.D. Cal. Nov. 2, 2011); In re Vioxx Prod. Liab. Cases, 2005 WL 6573263, at *3 (S.D. Cal. July 11, 2005). Therefore, Defendants assert "[t]he MDL court is in the best position to decide pending jurisdictional issues for purposes of judicial efficiency and consistency." Id. at 6 (citing Hardin v. Merck & Co., Inc., 2007 WL 1056790, at *3 (N.D. Cal. April 5, 2007)).

On the other hand, Plaintiffs contend the Court should address the matter of its jurisdiction prior to deciding the Motion to Stay. Plaintiffs observe: "Without jurisdiction, the court cannot proceed at all in any case. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." (Doc. 12 at 8) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998)). In addition, Plaintiffs note that the "[f]ederal courts normally must resolve questions of subject matter jurisdiction before reaching other threshold issues." Id. (quoting Potter v. Hughes, 546 F.3d 1051, 1061 (9th Cir. 2008). According toPlaintiffs, the presence of the JPML's conditional transfer order "does not affect 'pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court.'" Id. at 9 (citing Panel Rule 2.1(d); In Re Vioxx Prods. Liab. Litig., 360 F.Supp.2d 1352, 1354 (J.P.M.L. Feb. 16, 2005) ("motions to remand... can be presented to and decided by the transferee judge.")).

Because the district courts are "court of limited jurisdiction," the Court has an obligation to assure itself of its jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981). The Court "should not automatically stay discovery, postpone rulings on pending motions, or generally suspend further rulings upon a parties' motion to the MDL Panel for transfer and consolidation." Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997); JPML Rule 2.1(d) ("The pendency of a motion . . . [or] conditional transfer order . . . before the Panel pursuant to 28 U.S.C. § 1407 does not affect or suspend orders and pretrial proceedings in any pending federal district court action and does not limit the pretrial jurisdiction of that court"). Accordingly, the Court first considers whether it...