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Smith and Nephew: Motion to Consolidate | Smith and Nephew Hip Replacement LawyersSmith and Nephew Hip Replacement Lawyers.




(plaintiff name witheld for privacy)

Plaintiff, v.



Docket No. CT-004783-12

Division VII


Comes now the Plaintiff, (plaintiff name witheld for privacy), pursuant to Rule 42.01 of the Tennessee Rules of Civil Procedure and Local Rule of Practice Twenty-Two, and moves this honorable court for an order permitting consolidation of all after-filed cases relating to the Birmingham Hip Resurfacing Devices, R3 Metal Liners, and all other Metal-on-Metal modular hip implant components manufactured by defendant, Smith and Nephew, and would state as follows:

  1. The above-styled case involves a modular Metal-on-Metal Hip Implant manufactured by defendant, Smith and Nephew;
  2. Counsel for the above-listed plaintiff have also filed a case styled (plaintiff name witheld for privacy) etc, case no. CF000452-13, and this case now rests in Division I;
  3. The (plaintiff name witheld for privacy) case has a higher docket number than the (plaintiff name witheld for privacy) case;
  4. Undersigned counsel represent a number of additional plaintiffs who will soon be filing additional cases in this court for injuries and damages relating to the same hip implant platform, or components thereof, including the now-recalled R3 Metal Liner, the modular metal “heads,” and the Birmingham Hip Resurfacing Device;
  5. Undersigned counsel are aware of at least three other attorneys who intend to file a limited number of other, similar cases, alleging substantially similar injuries and damages relating to failures involving the very same products at issue in this case.
  6. Although coordination under Local Rule of Practice twenty-eight is another option, counsel for plaintiff are aware of only a handful of additional cases relating to the devices at issue to be filed in this court, and, therefore, there are not adequate numbers of these cases to be filed to warrant handling of this group of cases as a Mass Tort Docket pursuant to Local Rule of Practice Twenty-Eight;
  7. Nevertheless, there is a sufficient identity of issues in the cases that are being filed to justify consolidation under Tennessee Rule of Civil Procedure 42, which states as follows:
  8. “When actions involving a common question of law or fact are pending before a court, the court may order all the actions consolidated or heard jointly, and may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”
  9. Here, there exist numerous common issues of fact and liability to justify consolidation all after-filed cases with the matter before this court.
  10. In addition, Local Rule of Practice twenty-two provides, in pertinent part, that “[i]n instances in which consolidation of cases for trial is appropriate, and the cases have been assigned to different divisions of the court by the Clerk, in the absence of important reasons to the contrary, the case with the higher docket number should be transferred into the division of court which has the case with the lower docket number.
  11. Counsel believe that there consolidation of all cases filed against Smith and Nephew relating to the R3 Metal liner, the modular metal heads, and other components of metal-on-metal hip implants relating to the Birmingham Resurfacing and/or Total Hip Arthoplasty devices will promote judicial economy, enhance efficiency for the parties, avoid delays, limit duplicative discovery and motion practice, and eliminate the risk of inconsistent rulings on issues common to all cases.
  12. Finally, undersigned counsel is not aware of any lawyer for other plaintiffs who opposes this proposed action, and, in fact, is authorized to represent that counsel for several such additional plaintiffs who intend to file cases in the near future also support consolidation of their cases with this action.

Accordingly, plaintiffs respectfully move this court to accept transfer of cases with higher docket numbers, beginning with the case of [plaintiff] vs. etc., and to allow all subsequently filed cases relating to the above-described devices to be transferred to this court for consolidation with this matter.

DATED: March 21, 2013

Respectfully submitted,


/s/Ben W. Gordon, Jr.___________________

Ben W. Gordon, Jr. (FL Bar # 882836)


Daniel A. Nigh (FL Bar #00030905)


Levin, Papantonio, Thomas, Mitchell,

Rafferty, & Proctor, P.A.

316 S. Baylen Street, Suite 400

Pensacola, FL 32502

Telephone 850-435-7091

Facsimile 850-436-6033