Illinois attorneys representing clients who have had recalled DePuy hip prosthesis implanted, should be aware that these lawsuits can be kept in the state courts. Care must be taken in drafting the complaint and attention should be paid to federal civil procedural deadlines regarding remanding a case back to the state court system.
First, the DePuy ASR XL Hip Acetabular System and the ASR Hip Replacement System that were recalled by DePuy Orthopedics in August 2010, were distributed by Premier Orthopedic Sales, Inc., an Illinois corporation (See blog of April 5, 2011). Premier needs to be joined as a defendant along with DePuy Orthopedics, Inc., an Indiana corporation, pursuant to 735 ILCS 5/2-621.
Second, in drafting the complaint against Premier, it is essential that you allege facts that preclude removal pursuant to 735 ILCS5/2-621(c)(1), (2), or (3), specifically:
(1) Premier exercised control over design or manufacture; or
(2) Premiere had knowledge of the defect; or
(3) Premier created the defect.
On February 10, 2012, I filed suit in the circuit court of Cook County, on behalf of a lady whose DePuy hip implant system not only had the component parts come loose, but also caused dangerously high levels of chromium and cobalt in her blood. By alleging that the distributor, Premier Orthopedic Sales, Inc., had knowledge of the defects I plan on strenously resisting all efforts of DePuy Orthopedics to remove this action to federal court.
Many of the nationwide lawsuits that have been filed against DePuy Orthopedics, Inc. in state courts have been removed to federal court by DePuy based on 28 U.S.C. 1441, which essentially allows defendants to remove lawsuits filed in state courts to federal court, if each defendant resides in a different state than the plaintiff, no defendant is a citizen of the state in which action brought, and the amount in controversy exceeds $75,000.
Should DePuy Orthopedics, Inc. attempt to remove an action filed in an Illinois state court to federal court in a lawsuit that names Premier Orthopedic Sales, Inc. as a defendant, this can be remanded back to state court if the case was plead properly. Pursuant to 28 U.S.C. 1447(c), plaintiff has thirty days after removal to file a motion to remand the suit back to state court.
In Kopitke v. DePuy Orthopaedics, Inc. and Premier Orthopaedic Sales, Inc. (2011 WL 856865), Judge Darrrah of U.S. Dist. Ct. for the N.D. of Illinois, remanded a lawsuit DePuy had removed to federal court. The court ruled that the distributor, Premier, was not fraudulently joined to destroy diversity jurisdiction and that the allegations complied with 745 ILCS5/2-621(c)(2). The Seventh Circuit has defined "fraudulent joinder" as "a claim against an in-state defendant that simply has no chance of success." Poulos v. Nass Foods, 959 F. 2d 69, 73 (1992). Allegations alone are insufficient to keep a case in state court since a defendant seeking removal is entitled to present facts showing that "the individuals joined in the action cannot be liable on any theory." Ritchey v. Upjohn, 139 F. 3d 1313, 1318 (9th Cir. 1998).
Lawsuits against DePuy for their recalled hip implant systems filed in federal court or removed to federal court, are all transferred to the U.S. Dist. Ct. for the Northern District of Ohio to a multi district litigation panel along with thousands of other lawsuits. Keeping your clients' cases in the Illinois state courts to be handled individually is far preferable to having your client share her or his day in court with thousands of other claimants. If a case can be filed in the Illinois state courts, it should be. In selecting an attorney to represent you in DePuy litigation, remember to select an attorney not only with experience in product liability cases but also an attorney with extensive jury trial experience. Should you so choose, feel free to call Edmund Scanlan toll free 877-494-1309 for a free consultation to discuss your options.