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Meuchal v. Davol, Inc.

United States District Court, D. Montana, Missoula Division

August 19, 2019



          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]


         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.


         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"). ...

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