Not to over-generalize, but older people have been known to break their hips. Based on anecdotal evidence, broken hips hurt more than stepping on a broken bottle or a sea urchin during a tropical vacation. Based on more than anecdotal evidence, product liability plaintiff lawyers prefer state courts over federal courts. This is because of various factors that, they think, make the state courts more likely to impose pain, and impose a lot of pain, on the defendants. We have posted on many cases discussing the strategies used by product liability plaintiffs to stay out of federal court. These cases often come up in the posture of a motion to remand by the plaintiff after the defendant has removed under 28 U.S.C. § 1446. If the case can be transferred to an MDL court—potentially well-versed in the anti-removal strategies—before a ruling on the motion to remand, then the chance of the case staying put tends to go up.
In Millman v. Biomet Ortho., Inc., No. 3:13-CV-77 RLM-CAN (N.D. Ind. Dec. 10, 2013), and Akin v. Stryker Corp., Civ. No. 13-1811 (DWF/FLN) (D. Minn. Dec. 12, 2013), we have decisions on motions to remand from two different MDL courts on two different cases involving two different hip replacement implantable medical devices. We also have two different results, although both are good.
Continue Reading It’s Getting Icy Out, So Don’t Fall and Hurt Your (Non-Diverse Defendant in a) Hip (Replacement MDL)