Have you ever gone to a party and felt unwelcome? Neither have we, but the moving party in Bartis v. Biomet, Inc., No. 4:13-cv-00657, 2021 U.S. Dist. LEXIS 21048 (E.D. Mo. Feb. 4, 2021), sure must have felt that way. She tried to join and intervene in a consolidated set of prosthetic hip-related lawsuits that she said were similar to her own. Alas, the district court was an unwilling host and showed her the door.
Here is what happened. The Bartis plaintiffs’ cases were part of an MDL, but were among multiple non-settling cases that the MDL judge remanded to transferor districts for further proceedings and trial. These plaintiffs therefore landed back where they filed—in the Eastern District of Missouri—which consolidated their claims into one civil action. Then, a whole new plaintiff—whom we will call the “moving party”—decided she wanted to join her own hip-related lawsuit to the plaintiffs’.
We understand the purported basis for the moving party’s attempted joinder—she was treated with the same metal-on-metal hip implant as the plaintiffs. We do not, however, understand why she chose this route rather than proceeding with her own civil action. Was she trying to horn in on an already-set trial date? Was there discovery undertaken in the MDL to which she wanted to gain access? Did counsel view it as administratively convenient to ride along with a case with more water under the bridge?
We don’t know, and it doesn’t really matter. The order is important to us because it ruled that being treated with the same device does not alone justify joining different plaintiffs’ claims in one civil action. There were just too many differences. As the district court explained, permissive joinder under Federal Rule of Civil Procedure 20(a) (as opposed to required joinder under Rule 19) is permitted if the plaintiffs “(A) assert any right to relief . . . with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.” The first part of this test—the “transactional link”—is a case-by-case inquiry that focused on the “logical relationship” between the claims. Bartis, 2021 U.S. Dist. LEXIS at *4-5. The second part the test requires “commonality,” much like commonality for class certification under Rule 23(a)(2). Id.
The moving party failed to show a “transactional link”: She was treated with the same device, but with different medical providers, and her implantation was four years later than the plaintiffs whose party she was trying to crash. Id. Because of the four-year difference, her surgeon received different Instructions for Use from the Defendant. Id. at *6. The IFU is, of course, the key conduit for communicating known and knowable risks and is critical to any warnings-based claim.
The district court denied joinder: “[T]his Court concludes that the simple fact that [the moving party] also received a Magnum hip implant four years after Plaintiffs . . . from different medical providers relying on updated IFUs is not a sufficient logical connection to satisfy the transactional link requirement for permissive joinder.” Id. at *7. The district court further ruled that even if there were a transactional link, it would still deny permissive joinder because doing so late in the game would not “serve the interest of judicial economy.” Id.
The district court similarly denied the moving party’s motion to intervene in the plaintiffs’ action. A court may permit someone to intervene in a civil action “if they have ‘a claim or defense that shares with the main action a common question of law or fact.’” Id. at *8. In exercising this discretion, the primary factor is “whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Id.
Again, the claims were too different and the moving party was too late. The plaintiffs’ lawsuit had been filed eight years earlier, and substantial discovery had occurred in the MDL. Most significantly, the district court was “cognizant that Movants’ claim involved unique discovery and distinct legal considerations because [the moving party] received her implantation roughly four years after Plaintiffs.” Id. at *9.
This is the correct outcome on these facts, but while the district court was particularly moved by the four-year difference in time, it would not take so much of a difference for claims based on treatment with the same device to lack a “transactional link.” Many factors other than time distinguish medical device product liability claims from one another, including the plaintiffs’ conditions, medical histories, surgical technique, co-morbidities, and myriad other factors that make personal injury claims unique. Indeed, differences like these make us question whether the district court should have consolidated the Bartis plaintiffs’ claims in the first place. Regardless, the core ruling of Bartis is correct: The simple fact that these patients were treated with the same device could not alone support joinder or intervention.