United States District Court, D. Montana, Missoula Division
DONALD J. MEUCHAL, Plaintiff,
v.
DAVOL, INC., C.R. BARD, PROVIDENCE HEALTH & SERVICES-MONTANA and JOHN DOES 1-5, Defendants.
ORDER
Dana
L. Chrislensen, Chief District Judge
Before
the Court is the Motion to Stay All Proceedings pending
Transfer to Multidistrict Litigation of Defendants C.R. Bard,
Inc. and Davol, Inc. (collectively, "C.R. Bard").
(Doc. 2.) Plaintiff Donald J. Meuchal opposes the motion,
asking the Court to remand this case to the state court prior
to transfer to the court overseeing the multidistrict
litigation ("MDL") proceeding. (Docs. 12 & 13.)
Because the issue of remand depends strictly upon
interpretation of Montana law, it is best resolved by this
Court prior to transfer, and the Court considers it now.
Finding that it lacks removal jurisdiction, the Court remands
this matter to the Montana Fourth Judicial District Court,
Missoula County.[1]
Background
Meuchal
filed his Complaint in state court on January 12, 2018 and
perfected service on June 13, 2019. (Docs. 1 at 5, 1-1.) He
alleges injuries caused by a hernia mesh implant manufactured
and marketed by C.R. Bard. (Doc. 1-1.) Specifically, Meuchal
alleges that the implant migrated from his umbilicus, the
site of implantation in April 2006, to his small intestine,
where it implanted and became infected. (Id. at 4.)
Meuchal underwent surgery in January 2016 to remove
approximately 15 centimeters of his small intestine and the
portion of the mesh implant that was removable. (Id.
at 5.)
C.R.
Bard removed this action to federal court on July 12, 2019,
at which time it gave notice of the action to the Judicial
Panel on Multidistrict Litigation. C.R. Bard expects that
this action will be considered as part of the MDL case of in
re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh
Products Liability Litigation, No. 2: 18-md-2846-EAS-KAJ
(S.D. Ohio).
Meuchal
brings claims for: (1) strict products liability; (2)
negligence; (3) deceit; and (4) violation of the Montana
Consumer Protection Act. (Id. at 5-9.) The products
liability claim is the only claim brought against Defendant
Providence Health & Services-Montana
("Providence"), which operates the hospital where
the implant was placed.
Discussion
I. C.R.
Bard's Motion to Stay
"[T]he
power to stay proceedings is incidental to the power inherent
in every court to control disposition of the cases on its
docket with economy of time and effort for itself, for
counsel, and for litigants." Landis v. N. Am. Co., 299
U.S. 248, 254 (1936). Although a stay should not be granted
automatically, "courts 'frequently grant stays
pending a decision by the MDL panel regarding whether to
transfer a case."' Emyes-Kofler v. Sonofi S.A., No.
5:16-cv-07307-EJD, 2017 WL 813506, at *1 (N.D. Cal. March 2,
2017) (quoting Good v. Prudential Ins. Co. of Am., 5
F.Supp.2d 804, 809 (N.D. Cal. 1998)).
Because
consideration of a stay falls within the district court's
discretion, there is no established Ninth Circuit precedent
to guide the Court's decision. District courts generally
apply an equity-balancing test, considering "(1)
potential prejudice to the non-moving party; (2) hardship and
inequity to the moving party if the action is not stayed; and
(3) the judicial resources that would be saved by avoiding
duplicative litigation if the cases are in fact
consolidated." Rivers v. Walt Disney Co. 980
F.Supp. 1358, 1360 (CD. Cal. 1997). Ultimately, a stay should
be granted if the Court, in its discretion, finds that it
would "serve[] the interest of judicial economy and
efficiency." Good, 5 F.Supp.2d at 809.
Meuchal
asks the Court to issue a ruling on its pending motion for
remand prior to staying proceedings. He advocates for
application of a three-part test first set forth in
Meyers v. Bayer AG, 143 F.Supp.2d 1044, 1049 (E.D.
Wis. 2001). For purposes of this Order, the Court applies the
Meyers test to determine whether it should resolve
the pending motion to remand prior to staying further
proceedings. First, the Court "give[s] preliminary
scrutiny to the merits of the motion to dismiss,"
granting the motion to remand if it finds that removal was
clearly improper. Meyers, 143 F.Supp.2d at 1049.
Second, if "the jurisdictional issue appears factually
or legally difficult," the Court should consider whether
similar jurisdictional issues have been or are likely to be
raised in other cases transferred to the MDL proceeding.
Id; see Ernyes-Kofler, 2017 WL 813506, at *2;
Addison v. Bristol-Myers Squibb Co., No. C 13-02166
WHA, 2013 WL 3187859, at *1 (N.D. Cal. June 21, 2013). Third,
if the second step is satisfied, the Court should consider
the motion to stay, weighing "(1) the interests of
judicial economy; (2) hardship and inequity to the moving
party if the action is not stayed; and (3) potential
prejudice to the non-moving party." Meyers, 143
F.Supp.2d at 1049.
C.R.
Bard easily overcomes the first step of the Meyers
test, as it was not clearly improper to remove this
proceeding from state court. Although complete diversity does
not exist if Providence is an appropriate defendant, there is
more than a colorable argument that Providence should not be
named in this products liability action. At step two of the
Meyers test, however, C.R. Bard's argument
fails. There is no Montana case law on point, and so
"the jurisdictional issue appears factually or legally
difficult." Id. at 1049. It does not appear
that "identical or similar jurisdictional issues have
been raised in other cases that have been or may be
transferred to the MDL proceeding," and so it cannot be
said that judicial economy would be furthered by the MDL
court in the Southern District of Ohio resolving the issue of
remand, which requires interpretation of Montana products
liability law. Because step two of the Meyers test
is not satisfied, the Court does not reach the issue of
whether the equities favor delaying resolution of the motion
to remand. Thus, the Court will consider Meuchal1 s motion to
remand.
II.
Motion to Remand
Meuchal
moves for remand, claiming that complete diversity does not
exist. C.R. Bard opposes the motion, arguing that Providence
was fraudulently joined. C.R. Bard contends that: (1)
Providence was not a seller of the mesh implant such that it
may be held liable under Montana products liability law; and
(2) even if Providence were an appropriate defendant,
Meuchal's claim could not proceed because Meuchal failed
to first present his argument to the Montana Medical Legal
Panel ("MMLP"). ...