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In re Stryker Lfit V40 Femoral Head Products Liability Litigation

United States District Court, D. Massachusetts

October 23, 2017

IN RE STRYKER LFIT V40 FEMORAL HEAD PRODUCTS LIABILITY LITIGATION This Document Relates to All Cases

          AMENDED CASE MANAGEMENT ORDER NO. #2

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE

         APPLICABILITY OF THIS ORDER

         This Order sets forth the Court's AMENDED instructions regarding the direct filing of Complaints and responses thereto, as well as regarding Master Pleadings, in MDL Docket No. 2768 (“MDL No. 2768”). This Order applies to all cases previously or hereafter transferred to this MDL, or those which are directly filed in this District for consolidation with the MDL proceeding.

         I. DIRECT FILING OF COMPLAINTS

         (a) To promote judicial efficiency and eliminate delays associated with the transfer to this Court of cases filed in or removed to other federal district courts, any Plaintiff whose case would be subject to transfer to MDL No. 2768 may file his or her claims directly in this District for consolidation with the MDL in accordance with the procedures set forth in this Order.

         (b) Any complaint filed in this District for consolidation with the MDL proceeding must be accompanied by a civil cover sheet noting that the case is related to this MDL and the civil action filing fee.[1] Once a case number has been assigned to the action, a copy of the complaint (with the individual case number added) shall be filed on the MDL docket. The complaint shall (1) comport with the Federal Rules of Civil Procedure and all MDL Orders in this proceeding, (2) specifically allege the district court in which the Plaintiff, absent this Order, otherwise would have filed the case, and (3) specifically allege both the jurisdictional and venue bases for filing in that Court. If any Complaint fails to comply with these provisions, the Plaintiff will have 30 days after notification by Defendant to file an amended complaint to cure the defect. A complaint or amended complaint that fails to comply with these provisions will be subject to dismissal without prejudice.

         (c) Each case filed in this District for consolidation with MDL No. 2768 by a Plaintiff who resides in a federal district other than the District of Massachusetts will be consolidated with MDL No. 2768 for the purposes of pretrial proceedings, consistent with the Judicial Panel on Multidistrict Litigation's April 5, 2017 Transfer Order. No Defendant may challenge the venue of any action filed in this District for consolidation with MDL No. 2768 pursuant to this order until pretrial proceedings have concluded.

         (d) Consolidation of an action in MDL No. 2768, whether the action was or will be transferred to or originally filed in this proceeding, shall not constitute a determination that either jurisdiction or venue is proper in the District of Massachusetts. Nor does the transfer of a case following pretrial proceedings in this MDL constitute a determination that jurisdiction or venue is proper in the court to which the case is transferred.

         (e) No direct filing shall operate to waive or otherwise limit any Defendant's rights with respect to filing a motion to dismiss or to transfer based on improper venue, forum non conveniens, lack of personal jurisdiction, or the requirements of 28 U.S.C. § 1407 and Lexecon, Inc. v. Milberg Weiss, 523 U.S. 26 (1998).

         (f) This Order does not prohibit a party from filing an appropriate motion to remand, transfer, or dismiss, or for such other relief as may be appropriate, challenging the inclusion in this MDL of an action transferred to, or directly filed in, MDL No. 2768.

         (g) The direct filing of a case in this MDL pursuant to this Order will have no impact on choice of law, including with respect to the statute of limitations, that otherwise would apply to an individual case had it been filed in another court and removed and/or transferred to this Court pursuant to 28 U.S.C. § 1407.

         (h) Attorneys who appear in MDL No. 2768 are bound by all MDL Orders, including MDL Order No. 1 and MDL Order No. 3 and their provisions regarding attorney admissions, electronic filing and use of the Public Access to Court Electronic Records (“PACER”) system and PACER accounts.

         II. PROCEDURE FOR MASTER PLEADINGS

         (a) In light of the number of Complaints filed to date and the likelihood of additional filings in the future in MDL No. 2768, and the inefficiencies of drafting those Complaints and individual Answers to those Complaints, the Parties have agreed to the following procedures for the use of Master Pleadings. Nothing in this Order is intended to (or does) alter the applicable provisions of the Federal Rules of Civil Procedure or the Local Rules of this Court, except as otherwise provided herein or in any subsequent Order. These procedures apply to all cases pending against Defendant Howmedica Osteonics Corp. (“HOC”) in MDL No. 2768 and to all actions ...


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