Judge: Deirdre Hill, Case: BC488868, Date: 2023-05-11 Tentative Ruling

Case Number: BC488868    Hearing Date: May 11, 2023    Dept: M

Hearing Date: May 11, 2023             

Moving Parties: Defendant Medical Device Business Service Inc. f/k/a Depuy Orthopaedics, Inc, and Johnson & Johnson Services, Inc.

Joinder filed by Defendant Thomas P. Schmalzried, M.D.               

Responding Party: None.  Plaintiffs filed notice of non-opposition.

Motion to Server Plaintiffs’ Claims

            The court considered the moving papers.  The Court notes that Plaintiffs filed a notice of non-opposition.

RULING

The motion is GRANTED.  Plaintiffs are ordered to file individual cases, which will relate back to this matter, for statute of limitation purposes.

BACKGROUND

On August 1, 2012, plaintiffs Patrick Bliss, Olly Cantrell, Danielle Carter, Paul Felton, Bobbie Gibson, Constance Goodwin, Jeffrey Hawkins, Keith Hinkein, David Mix, Thomas O’Rourke, Leonore Pioli, Mary Pioli, Crystal Pope, Dale Smith, Malinda Walker, Sally Ward, and Dale Williams filed a Complaint against defendants Medical Device Business Service Inc. f/k/a Depuy Orthopaedics, Inc, Johnson & Johnson Services, Inc, and Thomas P. Schmalzried, M.D., filed a Complaint.  The Complaint asserts causes of action for (1) negligence, (2) strict products liability (manufacturing defect), (3) strict products liability (design defect), (4) strict products liability (inadequate warning), (5) strict products liability (failure to conform to representations), (6) strict products liability (failure to adequately test), (7) breach of express warranty, (8) breach of implied warranty of merchantability, (9) fraudulent concealment, (10) intentional misrepresentation, (11) negligent misrepresentation, (12) unlawful, unfair, and fraudulent business practices in violation of Business and Professions Code section 17200.

            On September 6, 2012, this case was removed to federal court.

            On November 23, 2022, this cases was remanded back to this Court.

            The only remaining plaintiffs are Jeffrey Hawkins and Crystal Pope.

            Defendants move the Court to sever plaintiffs’ claims.  Plaintiffs does not oppose the motion.    

LEGAL AUTHORITY

            CCP § 378 provides in relevant part:

“(a) All persons may join in one action as plaintiffs if:

(1)   They assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.”

CCP § 379.5 provides in relevant part :

“When parties have been joined under Section 378 . . . the court may make such orders as may appear just to prevent any party from being embarrassed, delayed, or put to undue expense, and may order separate trials or make such other order as the interests of justice may require.”

DISCUSSION

Defendants move the Court to sever plaintiffs’ claims on the grounds that plaintiffs were improperly joined under CCP § 378 because their claims do not arise out of the same transaction or occurrence, or series of transactions or occurrences. 

Defendants point the Court to David v. Medtronic, Inc. in support.  In David, the Court of Appeal, Second District, found that severance of plaintiffs’ claims was proper under CCP §§ 378 and 379.5.  (David v. Medtronic, Inc. (2015) 237 Cal.App.4th 734, 741.)  Specifically, the David court found that plaintiffs’ claims did not arise out of the same transaction or series of transactions, where the only similarity between plaintiffs was that they had the same medical device implanted.  (Id.)  Plaintiffs did not have the same surgery, their medical devices did not fail in the same way, had their surgeries performed by different surgeons, and were exposed to different representations by the manufacturer of the medical device.  (Id.)

Defendant contends that this matter is similar to David because plaintiffs were not treated by the same doctor or treated in the same state.  (Compl., ¶ 9, 15, 82, 98.)  In addition, plaintiffs did not receive the medical implants at the same time, as their surgeries took place over two years apart from each other.  (Id. at ¶¶ 82, 98.)  Furthermore, plaintiffs have vastly different medical histories, and the need for their surgeries and the alleged complications differ.  (Mot., 5:11-14.)   

Plaintiffs do not oppose the motion, but ask the Court that this case remain open, and that plaintiffs be allowed to file individual cases, which will relate back to this case for statute of limitation purposes.  Plaintiffs propose that this case serve as the lead case.

The Court finds that severance of plaintiffs claim is proper under CCP §§ 378 and 379.5, as plaintiffs’ claims do not arise out of the same transactions or series of transactions.  As set forth above, similar to David, the only similarity between plaintiffs’ claims is that they had the same medical device implanted.  Plaintiffs were treated over two years apart, and were treated in different states by different doctors.  In addition, plaintiffs medical histories are vastly different, and the need for their surgeries and the alleged complications differ.  Furthermore, severance of plaintiffs’ claims would promote the interest of justice because allowing this case to move forward, as is, would be unmanageable, impractical, and unfairly prejudicial to defendants.  As set forth above, plaintiffs treated with different doctors in different states, and their medical histories, reasons for surgeries, and alleged complaints are different.  Currently, this case will involve testimony from different witnesses with two different fact patterns, and will require a jury to consider laws of two different states, which may lead to jury confusion.

Plaintiffs are ordered to file individual cases, which will relate back to this matter, for statute of limitation purposes.  (CCP § 128.)

Thus, defendants’ motion for severance of plaintiffs’ claims is GRANTED.  Plaintiffs are ordered to file individual cases, which will relate back to this matter, for statute of limitation purposes.

Defendants are ordered to give notice of ruling.