Medical device maker seeks U.S. SC review in case over ‘mass action’ removal

By Jessica Karmasek | Sep 21, 2017

WASHINGTON (Legal Newsline) - One of the world’s leading manufacturers of interventional vascular technology has asked the U.S. Supreme Court to uphold its right, and that of other defendants, under the Class Action Fairness Act to remove lawsuits that involve 100 or more plaintiffs from state to federal court.

Cordis Corp., which was acquired by Cardinal Health in October 2015, filed its petition for writ of certiorari, or review, in the nation’s highest court last month. 

It asks the Supreme Court to answer the following question:

“When hundreds of plaintiffs from around the country file cases in a single state court, and propose to consolidate those cases for legal and evidentiary rulings, and bellwether trials that may bind defendants through issue preclusion, is this a removable ‘mass action,’ or can defendants’ right to remove be defeated by plaintiffs simply electing not themselves to be so bound?”

Cordis argues CAFA allows defendants to remove such a mass action. And courts of appeals in at least two circuits, the company points out, agree.

“Only the Ninth Circuit diverges, positing an additional, insurmountable prerequisite to removal of such cases,” Cordis wrote in its Aug. 17 petition.

In its April 14 decision, the U.S. Court of Appeals for the Ninth Circuit held that plaintiffs can defeat defendants’ right to remove simply by declaring their intent that preclusion be a one-way street -- namely, that adverse factual determinations in bellwether trials will bind defendants but not plaintiffs not party to those trials.

“For defendants to overcome the Ninth Circuit’s prerequisite, plaintiffs would have to agree to be bound,” Cordis explained. “Since that will not happen -- why would plaintiffs agree to that? -- defendants’ statutory right of mass action removal is now rendered a dead letter in the Ninth Circuit.

“The Ninth Circuit panel offered no rationale for its ruling as a matter of statutory interpretation or legislative purpose.”

Cordis argues the rule adopted by the Ninth Circuit turns the protective purposes of mass action removal “on its head.”

“Worse, it doubles down on the prejudicial impact to defendants by citing the lack of parallelism in the application of issue preclusion as a reason for rejecting removal: So long as plaintiffs propose a trial process under which only defendants can be bound by adverse results, they (a) get to remain in the state court they chose, (b) with that court administering a trial process that provides plaintiffs all the benefits of preclusion with none of the downsides,” the company wrote in its petition.

“The potential for such consolidated actions to be administered to the prejudice of defendants is just the concern that prompted Congress to grant defendants a right to have the process placed within the control of a federal judge. Yet without any grounding in either the language of the law or its purposes, the Ninth Circuit invokes that lack of parallelism in issue preclusion as a basis for denying defendants the ability to remove.”

The company wants the Supreme Court to resolve the circuit conflict and reaffirm defendants’ statutory right to remove cases of “national significance” to federal court. 

The petition arose from dozens of multi-plaintiff lawsuits filed by various law firms on behalf of hundreds of plaintiffs in Alameda County Superior Court in California.

There were at least 32 such multi-plaintiff lawsuits, each with less than 100 plaintiffs, but taken together totaling more than 300 plaintiffs, filed at the time of Cordis’ opening brief in the Ninth Circuit. More have been filed since.

Plaintiffs in these cases are residents of at least 35 different states and the District of Columbia.

They allege varied injuries from the use of Cordis inferior vena cava, or IVC, filters. The filters are designed for implantation in high-risk surgical patients by trained interventional radiologists and vascular surgeons to assist in preventing pulmonary emboli from reaching the heart or lungs.

The plaintiffs in the case at issue, Dunson v. Cordis Corp. et al., are eight individuals who allege separate surgical procedures in different surgical locations, presumably with various doctors, at different times, according to Cordis’ petition.

In May 2016, one group of plaintiffs moved to consolidate their case with the other multi-plaintiff actions then pending in Alameda County, including Dunson.

In response, in June 2016, Cordis removed nearly a dozen cases, including Dunson, to the U.S. District Court for the Northern District of California.

Certain plaintiffs moved to remand, but the cases were deemed related and transferred to Judge Edward Chen for the Northern District of California. In September 2016, Chen remanded 14 of the cases then pending before him.

The judge held the suits did not qualify as a “mass action” and thus could not be removed to federal court under CAFA. The Ninth Circuit agreed.

Cordis filed a petition for rehearing en banc in the Ninth Circuit, but was denied in May.

The Washington Legal Foundation, a D.C.-based public interest law firm that advocates for free-market principles, recently filed an amicus brief in support of Cordis’ Supreme Court petition.

WLF, like Cordis, argues the lawsuits are removable under CAFA because the law applies whenever a suit combines the claims of 100 or more plaintiffs and does not limit the requested consolidation solely to pretrial proceedings.

The foundation’s brief urges the Supreme Court to grant the petition and ensure that interstate cases of national importance can be heard in federal court.

“Congress adopted CAFA to ensure that a state-court defendant would have the option of removing its case to federal court where the suit is substantial and involves numerous plaintiffs, and minimal diversity exists,” it wrote in its brief, filed Monday.

“WLF is concerned that the decision below unduly restricts the intended application of CAFA.”

Congress adopted the Class Action Fairness Act in 2005 to ensure that the right of removal is protected for most defendants, particularly in cases seeking significant damages and in which the plaintiff is suing to collect for alleged injuries on behalf of numerous individuals.

CAFA gives federal courts jurisdiction to certain class actions in which the amount in controversy exceeds $5 million, and in which any of the members of a class of plaintiffs is a citizen of a state different from any defendant, unless at least two-thirds or more of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the state in which the action was originally filed. 

Business groups and tort reform supporters lobbied for the legislation, arguing it was needed to prevent class action lawsuit abuse.

A response to Cordis’ petition must be filed by Oct. 18.

From Legal Newsline: Reach Jessica Karmasek by email at

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