Medical Device Suits Look Likely to Stay in State Court

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By Perry Cooper

Cordis Corp.'s counsel appeared unable to convince a Ninth Circuit panel at March 13 oral arguments that personal injury claims involving its inferior vena cava filters belong in federal court ( Dunson v. Cordis Corp., 9th Cir., No. 17-15257, argued 3/13/17 ).

The plaintiffs asked for the cases to be consolidated for a bellwether trial process, which Cordis argued means they wanted the cases coordinated for trial.

It was “silly” for the company to parse the plaintiffs’ word choices in their motion to consolidate their claims so closely, Judge Paul J. Watford of the U.S. Court of Appeals for the Ninth Circuit said.

Another judge said Cordis was asking the court to “flyspeck” for language that the plaintiffs wanted consolidation for trial purposes, and thereby forfeit state court jurisdiction.

“How do we live with a rule like that?” Judge Josephine L. Staton, sitting by designation from the U.S. District Court for the Central District of California, asked.

Cordis asked the Ninth Circuit to expand on its 2014 holding that if plaintiffs ask for consolidation “for all purposes” or “through trial,” they are submitting to federal jurisdiction.

CAFA Mass Action Provision

Plaintiffs filed over 30 lawsuits, each featuring fewer than 100 plaintiffs. They moved to consolidate the cases for pretrial purposes.

Cordis argued the consolidation motion triggered federal jurisdiction under the Class Action Fairness Act’s mass action provision. The provision allows for federal jurisdiction when the monetary relief claims of 100 or more persons are “proposed to be tried jointly” on the ground that the plaintiffs’ claims involve common questions of law or fact.

Andrew D. Kaplan of Crowell & Moring LLP in Washington, arguing for Cordis, said words like “tried” and “inconsistent adjudication” in the plaintiffs’ consolidation motion make it clear that the plaintiffs were proposing joint trial.

Watford and Staton didn’t seem convinced. But Watford chastised plaintiffs’ counsel: “You could have not used the word ‘adjudication.’”

Troy Alexander Brenes of Brenes Law Group P.C. in Aliso Viejo, Calif., arguing for the plaintiffs, admitted that the word choice showed “sloppy drafting.” But it was clear from the context that the plaintiffs didn’t seek joint trial, he said.

Judge Ferdinand F. Fernandez also served on the panel.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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