Federal Judge Retains Jurisdiction in DePuy Hip Implant Lawsuit

A federal judge presiding over a DePuy hip implant lawsuit has determined that the case will not be sent back to Nevada state court, despite the plaintiff’s jurisdictional arguments, finding that a medical device supplier included as a defendant in the suit was fraudulently added to the complaint.

The ruling was issued on September 16 by Judge Robert C. Jones in U.S. District Court for the District of Nevada and was made in the face of evidence offered by the plaintiff suggesting that a Nevada-based medical device supplier was involved in the surgical removal of the allegedly faulty hip device, or at least its immediate aftermath. If accepted, such evidence would serve to defeat the diversity requirement for federal jurisdiction over the case.

Because Judge Jones deemed plaintiff’s offered evidence to be insufficient, the jurisdiction over the matter will remain with the federal court.

Complaint initially filed in Clark County, Nevada

The complaint in this case was initially filed in Clark County District Court in Nevada, with the plaintiff later including DePuy Orthopaedics, Inc. and Precision Instruments (a Nevada device supplier) as additional defendants. However, the pleadings did not specify which named defendant actually supplied or sold the device used in the plaintiff, a fact which would ultimately prove problematic.

A Precision Instruments representative argued that it had no role whatsoever with regard to the hip or stem devices implanted in the plaintiff or the revision surgery he had undergone, stating also that its company database held no records of having supplied a DePuy hip device to the plaintiff.

Offered evidence found insufficient by judge

In response, the plaintiff produced a surgery record appearing to show that the very same representative collected the allegedly defective devices on request of the surgeon who performed the removal procedure. Ultimately, Judge Jones found that the surgical record was hearsay, as it had never been properly authenticated, was not created or maintained for purposes of medical treatment and was not a record of a regularly conducted function or activity, all factors which run afoul of applicable evidence rules.

The judge further found that other evidence offered by the plaintiff in support of his jurisdictional argument did nothing to help establish whether or not Precision Instruments had been the supplier of the relevant hip or stem device.

Precision fraudulently joined, federal court retains jurisdiction

Given his finding that Precision’s declaration that it had no involvement with plaintiff’s hip replacement device was properly admissible evidence and that the plaintiff’s submissions intending to counter that argument were not, the judge held that Precision Instruments of Nevada had been fraudulently joined in the lawsuit. As a result, the plaintiff was unable to negate the geographic diversity of the named defendants in his hip implant lawsuit, causing jurisdiction over the matter to remain with the federal court.

Litigation over DePuy hip replacements to continue

This case is among the latest DePuy hip implant lawsuits to make its way through the courts in what has been a troubled few years for the device manufacturer. In 2013, parent firm Johnson & Johnson agreed to pay over $2.5 billion in settlements relating to DePuy’s ASR hip system.

The company’s Pinnacle implant system is the subject of a Multidistrict Litigation in the U.S. District Court for the Northern District of Texas, with included lawsuits totaling over 6,800. With bellwether cases in the Pinnacle MDL getting underway, it remains to be seen whether another massive settlement agreement between Johnson & Johnson/DePuy and DePuy hip lawyers representing thousands of hip replacement plaintiffs will be forthcoming.

Resources Resources