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David v. Medtronic, Inc.

California Court of Appeals, Second District, Eighth Division

June 12, 2015

BRANDON R. DAVID et al., Plaintiffs and Appellants,
v.
MEDTRONIC, INC., et al., Defendants and Respondents,

[As modified June 26, 2015.]

Page 735

[Copyrighted Material Omitted]

Page 736

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC510542 Terry A. Green, Judge. Reversed in part and affirmed in part.

COUNSEL

The Miller Firm and Curtis G. Hoke for Plaintiffs and Appellants.

Kirkland & Ellis, Luke L. Dauchot, Nimalka R. Wickramasekera, Sharre Lotfollahi and Sierra Elizabeth for Defendant and Respondent Gary K. Michelson, M.D.

Reed Smith, Michael K. Brown, Lisa M. Baird, David J. de Jesus and Kasey J. Curtis for Defendants and Respondents Medtronic Inc., Medtronic Sofamor Danek USA, Inc., Medtronic Vertelink, Inc., Wyeth Pharmaceuticals, Inc. and Pfizer Inc.

Page 737

OPINION

RUBIN, ACTING P. J.

When a defendant moves to dismiss a multi-defendant action for forum non conveniens, the defendant is required to establish that an alternative forum exists in which the action could be brought against all defendants. (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 433 [104 Cal.Rptr.2d 670] (American Cemwood).) If this rule is enforced without exception, an enterprising plaintiff could preclude a forum non conveniens dismissal by naming an additional defendant over whom the alternative forum could not exercise jurisdiction. The question raised by this case is whether the presence of a so-called “nominal defendant” can prevent the remaining defendants from obtaining a forum non conveniens dismissal when, in the absence of the nominal defendant, the action can and should be pursued in alternative forums. We conclude that the presence of a nominal defendant cannot defeat a forum non conveniens dismissal which should otherwise be granted.

That situation occurred in this case, and the trial court granted the forum non conveniens motion in favor of all defendants, including the nominal defendant, resulting in an effective dismissal of plaintiffs’ claims against the nominal defendant. We conclude that the trial court correctly granted the forum non conveniens dismissal in favor of all other defendants, but erred in dismissing plaintiffs’ action against the nominal defendant. Instead, the court should have severed the action against the nominal defendant and allowed it to proceed in California. We therefore affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

1. Allegations of the Complaint

This case is a products liability action regarding a medical device known as Infuse. The precise details of the use of Infuse, and plaintiffs’ injuries, are unnecessary to the resolution of this appeal. Broadly speaking, Infuse consists of two parts: a genetically engineered protein that stimulates bone growth (protein); and a metal cage used as a scaffold to house the protein and provide a framework for the bone growth (cage). Infuse was approved by the Food and Drug Administration (FDA) for use in a limited class of spinal fusion surgeries. Plaintiffs are 37 patients who had Infuse implanted in off-label uses that had not been approved by the FDA. These off-label uses included different classes of spinal fusion surgeries and implantation of the Infuse protein without the Infuse cage. Plaintiffs ...


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