Products Liability Law Daily MDL court abused its discretion by dismissing patient’s claims with prejudice in surgical device injury case
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Monday, April 12, 2021

MDL court abused its discretion by dismissing patient’s claims with prejudice in surgical device injury case

By Joshua Frumkin, Esq.

Although the patient failed to comply with a case management order requiring proof of a bacterial infection, his allegations might constitute a prima facie case for defective design under Louisiana law.

In a case concerning a patient who developed a bacterial infection after undergoing op en heart surgery, the U.S. Court of Appeals for the Third Circuit reversed a decision by a multidistrict litigation (MDL) court that dismissed with prejudice the patient’s claims against the manufacturer of a heating/cooling device used during the operation. The appellate panel found that the patient had stated a prima facie claim for relief under the Louisiana Products Liability Act and, thus, his case should have been remanded back to Louisiana instead of dismissed entirely (Hamer v. LivaNova Deutschland GMBH, April 9, 2021, Roth, J.).

On July 20, 2017, the patient underwent open heart surgery during which his doctors used the 3T Heater-Cooler System (3T System) manufactured by LivaNova Holding U.S.A., Inc. (LivaNova). The patient developed an infection and returned to the hospital on September 4, 2017. His physicians suspected that the infection stemmed from a non-tuberculosis mycobacterium (NTM). The hospital recently had an outbreak of NTM infection among patients who had surgery involving the 3T System. The patient was treated for a suspected infection, but his physicians never isolated a culture of NTM from him. The patient alleged injury from the treatment.

The patient filed a complaint against LivaNova, asserting claims under the Louisiana Products Liability Act (LPLA). In August 2018, his case was transferred to an ongoing MDL concerning alleged damages from the NTM outbreak caused by the 3T System. In April 2019, the MDL court entered Case Management Order 15 (CMO 15) requiring claimants to provide, among other things, proof of NTM infection through record of a positive bacterial culture to prevail. The patient failed to produce such evidence, opposed the order, argued that his complaint should not be dismissed because he stated a prima facie claim for relief under Louisiana law, and moved to remand his case out of the MDL. The MDL court instead dismissed the patient's claim with prejudice in March 2020 and denied his motion to remand. The patient appealed.

Dismissal with prejudice was abuse of discretion. The appeals court agreed with the patient's argument that the MDL court abused its discretion by dismissing his claims with prejudice solely because he could not produce proof of a positive NTM culture, and that this dismissal denied him the right to proceed in any court under a theory of injury that stated a prima facie claim against LivaNova. CMO 15 is a Lone Pine order, whereby MDL courts require claimants to produce prima facie evidence for their claims. The appellate court noted that it was not finding that the CMO itself or its contents was an abuse of discretion. MDL courts are entitled to significant latitude to mitigate the burdens of mass tort litigation, and Lone Pine orders that impose preliminary discovery requirements are normal and appropriate. The appellate panel explained that the MDL court would have been acting within its discretion had it dismissed the patient's claims without prejudice for failure to comply with CMO 15 or if it had granted the motion to remand.

The panel also noted that the MDL court would have been acting within its discretion if it had dismissed the patient's claims after a finding that he failed to state a prima facie claim. However, the MDL court dismissed the claims with prejudice even though the patient stated a prima facie claim under Louisiana law. The appeals court found that this had deprived the patient of his opportunity to litigate his claims in any venue. The panel noted that the patient might have been infected with a different bacteria, that he alleged injuries arising from an overly long course of antibiotics, and that the version of the 3T System used suffered design defects which rendered it unreasonably dangerous in a way that newer models rectified. The appeals court found that those allegations might constitute a prima facie case for defective design under the LPLA that should not have been dismissed with prejudice, even if those claims did not fit within the schema of the MDL. The panel therefore reversed the MDL court's dismissal with prejudice of the patient's claims.

Remand was appropriate. The appellate court also reversed the MDL court's denial of the patient’s motion to remand. Under statute, the Judicial Panel on Multidistrict Litigation (JPML) has the authority to remand a case that was transferred to an MDL proceeding. The JPML has discretion to remand if doing so would promote the just and efficient conduct of the MDL proceeding. The JPML should remand only if good cause for doing so is presented by the movant. Here, the appeals court determined that the patient had presented good cause for remand: he alleged alternate theories of liability which raised questions that were not present for patients with a positive NTM culture. The panel held that the MDL court should have requested that the JPML remand his claims back to Louisiana. Thus, the panel reversed the MDL court's denial of the motion to remand and instructed the MDL court to request that the JPML so remand.

The case is No. 20-1656.

Attorneys: Lawrence J. Centola, III (Martzell Thomas & Bickford, APC) for Kyle Hamer. Mark J. Winebrenner (Faegre Drinker Biddle & Reath LLP) for LivaNova Deutschland GmbH f/k/a Sorin Group Deutschland GmbH and LivaNova Holding USA, Inc. f/k/a Sorin Group USA, Inc.

Companies: LivaNova Deutschland GmbH f/k/a Sorin Group Deutschland GmbH; LivaNova Holding USA, Inc. f/k/a Sorin Group USA, Inc.

MainStory: TopStory DesignManufacturingNews MedicalDevicesNews JurisdictionNews EvidentiaryNews DelawareNews NewJerseyNews PennsylvaniaNews VirginIslandsNews

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