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In re Stryker Lfit V40 Femoral Head Products Liability Litigation

United States District Court, D. Massachusetts

January 14, 2020

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

         Amended MDL Order No. 1 (General Provisions)

          ORDER

          Indira Talwani United States District Judge.

         1. This Order shall govern the practice and procedure in those actions transferred to this court by the Judicial Panel on Multidistrict Litigation pursuant to its order of April 5, 2017, in MDL No. 2768, [1] and any tag-along actions transferred by the Panel after that date, and any related actions previously assigned to this court. This court will decide the applicability of this Order to any case filed in the District of Massachusetts as a related case on motion of any party in any such case.

         2. The actions subject to this Order are coordinated for pretrial purposes. All pleadings and other papers in each of the coordinated actions shall be filed in the District of Massachusetts as detailed below, and not with the transferor court.

         3. An MDL master file and docket has been established under Docket No. 17-md-2768-IT. Each action transferred to this court will also be assigned a new District of Massachusetts civil action number.

         4. Short form complaints and service of process must be filed in the individual docket, but do not need to be filed in the Master Docket. Short form complaints and other documents filed in the individual case shall include the individual case number and the following caption:

IN RE: STRYKER LFIT V40 FEMORAL HEAD PRODUCTS LIABILITY LITIGATION
This Document Relates To:
PLAINTIFF NAME(S), Plaintiff(s) v. HOWMEDICA OSTEONICS CORP., Defendant.
MDL No. 17-md-2768-IT Individual Case Number]

         5. Counsel shall file pleadings and other papers which concern the entire MDL in the Master Docket and need not file them in the individual docket. The caption of these pleadings and other papers shall include the MDL docket number and the following caption:

IN RE: STRYKER LFIT V40 FEMORAL HEAD PRODUCTS LIABILITY LITIGATION
This Document Relates To: All Cases
MDL No. 17-md-2768-IT

         6. Counsel shall file the following documents in both the individual docket as well as the Master docket:

- Any dispositive motion in an individual case, whether stipulated or otherwise;
- Any motion to exclude an expert witness and any order regarding the same;
- Notice of Appearance or Motion to Withdraw as an Attorney

         7. Counsel shall provide courtesy copies to the District Court Clerk's Office only as required in this court's Standing Order Regarding Motion Practice.

         8. This Order shall be filed and docketed on the Master Docket and the docket of each of the individual cases coordinated under the Master Docket Number, at present and hereafter.

         9. Any orders, other than orders setting deadlines previously entered by this or any transferor District Court, shall remain in full force and effect unless modified by this court upon motion.

         Date: January 19, 2017

         IT IS SO ORDERED.

         CORRECTED MDL Order No. 2 (Suspending Deadlines & Staying Responsive Pleadings)

         April 25, 2017

         1. In the interests of judicial economy, all deadlines established prior to transfer of these actions are suspended, and all deadlines to file responsive pleadings are stayed in all coordinated actions before this court in this multidistrict proceeding pending further order of this court.

         2. This order does not alter any mediation deadlines or dates set by a Magistrate Judge for this District to whom a case has been referred for Alternative Dispute Resolution.

         IT IS SO ORDERED.

         Amended MDL Order No. 3 (Concerning Appearances of Counsel, Including Appearances of Counsel Seeking to Directly File Actions)

         October 23, 2017

         1. Counsel shall familiarize themselves with this District's CM/ECF policies and procedures and shall register electronically for an account on the District's CM/ECF system using the ECF Registration Form available on the court's website. In the MDL Attorney field on the ECF Registration Form, counsel shall note both the master MDL case number and the individual Massachusetts civil action number for each of the actions consolidated in this MDL in which he or she represents a party.

         2. All counsel appearing in this MDL, including counsel admitted pro hac vice in accordance with Paragraph 4, shall file a Notice of MDL Appearance in each civil action in which he or she represents a party and in the master MDL file.

         3. Counsel who filed an appearance in an individual case transferred to this court and who are duly admitted to practice before any United States District Court may appear in this matter without the filing and allowance of a motion to appear pro hac vice.

         4. Counsel who do not have permission to appear pursuant to Paragraph 3 and are not admitted to practice in the District of Massachusetts, but who seek to direct file a case in this District as part of the MDL, must comply with the following procedures:

a. The attorney shall prepare a certification of good standing pursuant to Local Rule 83.5.3(e)(3), and shall forward that certificate and the fee for the motion for leave to appear pro hac vice to Plaintiffs' Administrative Counsel for filing;
b. Upon receipt of such certificate and fees, Plaintiffs' Administrative Counsel shall file on the master MDL docket a motion for the attorney's admission pro hac vice and shall attach the prepared certificate. Plaintiffs' Administrative Counsel need not personally attest to the attorney's good standing in her motion.
c. An attorney who is admitted pro hac vice shall register electronically for an account on the District's CM/ECF system in accordance with Paragraph 1.

         5. No parties in any of the transferred or directly filed actions shall be required to obtain local counsel in this District.

         6. Any attorney who appears in this matter in accordance with this Order shall be subject to the Local Rules of this court, including its attorney discipline rules.

         IT IS SO ORDERED.

         MDL Order No. 4

         April 19, 2017

         Counsel in the coordinated actions are directed not to correspond directly with the court regarding appointment as Lead Counsel or Liaison Counsel. Appointments to such positions will be made after the Initial Status Conference and pursuant to a process to be established by the court. Counsel may file requests, notices or other communication with the court on the MDL and related case dockets, as appropriate, after filing notices of appearance in accordance with the court's MDL Order No. 1 [#3] and MDL Order No. 3 [#5].

         IT IS SO ORDERED.

         MDL Order No. 5 (Initial Status Conference)

         April 21, 2017

         1. The clerk shall set an initial status conference for May 16, 2017, at 3:00 PM.

         2. In advance of the initial status conference, counsel in each of the coordinated actions shall file a status report identifying any pending motions, including motions to remand or dismiss, and identifying the state or states whose laws may govern the action in whole or part.

         3. The court anticipates the agenda for the initial status conference to include:

a. Discussion of a leadership structure for the plaintiffs to promote the effective management of the litigation. Counsel shall be prepared to identify case-specific issues that may inform the appropriate structure.
b. Discussion of potential objectives for the MDL proceeding, including: the elimination of duplicative discovery; avoiding conflicting rulings and schedules among courts; reducing litigation costs; saving the time and effort of the parties, attorneys, witnesses, and courts; streamlining key issues; and moving cases toward resolution (by trial, motion practice, or settlement). Counsel shall be prepared to identify any other or different objectives, and to discuss priorities for these objectives for the court's formulation of a management plan.
c. Scheduling of monthly status conferences.
d. Other matters that counsel seek to have addressed in advance of the court's appointment of a leadership team for the plaintiffs. Counsel seeking to raise such additional matters should file a notice setting forth such matters on the MDL docket by the close of business on May 12, 2017.

         4. Counsel who intend to seek a leadership position shall attend the initial status conference in person. Counsel not seeking leadership positions may attend in person or by telephone. A separate order will govern the attendance and participation of counsel by telephone. Attendance by each party or attorney is not required and parties with similar interests may be represented at the conference by a single attorney.

         5. All counsel who intend to attend (in person or by telephone) shall file a Notice of MDL Appearance as directed in MDL Order No. 3 [#5] in advance of the initial status conference.

         IT IS SO ORDERED.

         MDL Order No. 6 (Attendance and Participation of Counsel by Telephone)

         May 1, 2017

         This order is intended to govern the attendance and participation of counsel by telephone in any court proceedings in this matter.

1. Only counsel who have filed a Notice of MDL Appearance on the master MDL docket 17-md-2768, as required in paragraph 2 of MDL Order No. 3 (Concerning Appearances of Counsel) [17-md-2768, #5], may participate by telephone in a court proceeding in this matter.
2. The court shall host the conference line for the initial status conference on May 16, 2017, at 3:00 PM. Counsel who wish to attend the initial status conference by telephone should notify the courtroom clerk reasonably in advance of the proceeding. There are a limited number of lines available for dial-in access. Counsel are encouraged to dial into the call early to secure a line.
3. Counsel attending by telephone will not be permitted to speak during the proceeding unless called upon or recognized by the court. Counsel who wish to address a particular issue by telephone should endeavor to notify the court in writing reasonably in advance of the proceeding, so that the court can recognize counsel at an appropriate time.
4. Counsel attending by telephone shall minimize background noise and other interference during the call. Counsel should normally mute their telephones, so that they can hearing the proceeding but other participants will not hear any unwanted noise or interference. Counsel shall not place the call on hold once connected to the conference line.
5. Once Plaintiffs' Lead Counsel is appointed, Plaintiffs' Lead Counsel shall host the conference line for any court proceedings in this matter. Counsel who wish to attend by telephone shall notify Plaintiffs' Lead Counsel reasonably in advance of the proceeding. Plaintiff's Lead Counsel shall prepare and submit to the court a list of counsel appearing by telephone at or reasonably in advance of the proceeding.

         IT IS SO ORDERED.

         MDL Order No. 7 (Attendance and Participation of Counsel at Initial Status Conference)

         May 10, 2017

         This order supplements MDL Order No. 5 (Initial Status Conference) [17-md-2768, #11] and MDL Order No. 6 (Attendance and Participation of Counsel by Telephone) [17-md-2768, #15] as to the initial status conference set for May 16, 2017, at 3:00 p.m. in Courtroom 9.

         1. Counsel who intend to participate in person, or who intend to attend or participate by phone, shall have a Notice of MDL Appearance filed on the master MDL docket 17-md-2768, as required in paragraph 2 of MDL Order No. 3 (Concerning Appearances of Counsel) [17-md-2768, #5] no later than 4:00 p.m. on May 15, 2017.

         2. Counsel who have filed a Notice of MDL Appearance who wish to attend the initial status conference by telephone should e-mail the courtroom clerk at gail_macdonald@mad.uscourts.gov or the docket clerk at carolina_dasilva@mad.uscourts.gov no later than 4:00 p.m. on May 15, 2017 for a call-in number and access code.

         3. Counsel in a civil action subject to a Conditional Transfer Order in MDL No. 2768 that has not yet become final, or in a civil action that is the subject of a pending Notice of Potential Tag-Along Action filed in MDL No. 2768, who seek to participate at the Initial Status Conference in person, or to attend or participate at the Initial Status Conference by phone, may manually file with the clerk for filing on the master MDL docket 17-md-2768 a motion seeking leave to participate in the status conference as an interested party. Any such motion shall be received by the clerk no later than 4:00 p.m. on May 15, 2017.

         4. Counsel who do not have a case that has been coordinated as part of this action or pending before the United States Judicial Panel on Multidistrict Litigation in MDL No. 2768 may observe the initial status conference in person, but will not be provided a call-in number.

         5. Counsel attending by telephone will not be permitted to speak during the proceeding unless called upon or recognized by the court. Counsel who wish to address an issue by telephone should e-mail the courtroom clerk (at gail_macdonald@mad.uscourts.gov) or docket clerk (at Carolina_dasilva@mad.uscourts.gov) no later than 4:00 p.m. on May 15, 2017 so that the court can recognize counsel at an appropriate time.

         6. Counsel attending by telephone shall minimize background noise and other interference during the call. Counsel should normally mute their telephones, so that they can hear the proceeding but other participants will not hear any unwanted noise or interference. Counsel shall not place the call on hold once connected to the conference line.

         IT IS SO ORDERED.

         MDL Order No. 8 (Leadership Structure for Plaintiffs' Counsel)

         June 9, 2017

         This order sets forth the leadership structure for plaintiffs' counsel in order to organize, simplify, and streamline the handling of these matters on behalf of all plaintiffs, consistent with the fair administration of justice. This leadership structure is subject to change by court order.

         1. Co-Lead Counsel - The court will appoint two attorneys as Co-Lead Counsel. The responsibilities of Co-Lead Counsel are set forth in paragraph 8 of this order.

         2. Administrative Counsel - The court will appoint one attorney as Administrative Counsel. The responsibilities of Administrative Counsel are set forth in paragraph 9 of this order.

         3. State Liaison Counsel - The court will appoint one attorney as State Liaison Counsel. The responsibilities of State Liaison Counsel are set forth in paragraph 10 of this order.

         4. Plaintiffs' Executive Committee - Co-Lead Counsel and Administrative Counsel will serve on the Plaintiffs' Executive Committee. The court will appoint three (3) additional attorneys to serve on the Executive Committee. The responsibilities of the Executive Committee are set forth in paragraph 7 of this order.

         5. Plaintiffs' Steering Committee - The court will appoint up to twelve (12) attorneys to serve on the Plaintiffs' Steering Committee. The responsibilities of the Plaintiffs' Steering Committee are set forth in paragraph 11 of this order.

         6. Changes in Membership - Appointments are personal in nature. Appointments may be changed by the court, on its own with notice to counsel; on motion of any member of the Plaintiff's Executive Committee, Steering Committee, or State Liaison Counsel; or, if necessary to ensure the fair administration of justice, on motion of counsel who has filed a notice of appearance on the master MDL docket and who represents one or more plaintiffs in the coordinated actions.

         7. Responsibilities of the Plaintiffs' Executive Committee - The Plaintiffs' Executive Committee shall be generally responsible for coordinating the activities of plaintiffs' counsel during pretrial proceedings as well as monitoring and ensuring that work conducted by plaintiffs' counsel is reasonably necessary and avoids unnecessary costs and duplication of effort. The Plaintiffs' Executive Committee shall determine (after consultation with the Plaintiffs' Steering Committee and other plaintiffs' counsel as may be appropriate) the position of the plaintiffs on all matters arising during pretrial proceedings. The Plaintiffs' Executive Committee shall have the following specific responsibilities:

         a. Discovery

i. To coordinate all pretrial discovery on behalf of, and for the benefit of, plaintiffs in all actions subject to this order;
ii. To develop schedules for the commencement, execution, and completion of all discovery on behalf of all plaintiffs; and
iii. To initiate and conduct, or to delegate to Plaintiffs' Steering Committee members to initiate and conduct, all pretrial discovery on behalf of, and for the benefit of, plaintiffs.

         b. Pre-trial Motions and Hearings

i. To coordinate all pretrial motions and hearings on behalf of, and for the benefit of, plaintiffs in all actions subject to this order; and
ii. To litigate, or to delegate to Plaintiffs' Steering Committee members to litigate, any pretrial motions and hearings that involve matters within the responsibilities of the Plaintiffs' Executive Committee.

         c. Trial

i. To coordinate the selection and management of any common issue, “bellwether, ” and/or “test” case trials; and
ii. To present, or to delegate to the Plaintiffs' Steering Committee members to present, any common issue, “bellwether, ” and/or “test” case trials.

         d. Settlement

i. To coordinate negotiation and proposed settlement of cases on behalf of plaintiffs or plaintiff groups, including exploring and, where appropriate, pursuing all settlement options concerning any claim or portion of any case filed in this litigation; and
ii. To coordinate negotiation of stipulations with defendants concerning this litigation, subject where appropriate to the objections of individual counsel ...

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