Illinois Plaintiff Keeps Claim Against DePuy in State Court

What it means to “have your day in court” often depends on which court you have your day in.  Accordingly, the Plaintiff in Kopitke v. DePuy Orthopaedics, Inc. et. al., 2011 WL 856865 (N. Dis. IL 2011) (“Kopitke”) fought fiercely to establish her home state’s Circuit Court of Cook County, Illinois as the appropriate jurisdiction for her product liability and personal injury claims against DePuy Orthopaedics, Inc. (“DePuy”) and Premier Orthopaedic Sales, Inc. (“Premier”).

When each defendant in a lawsuit resides in a different state than the plaintiff and the amount in controversy exceeds $75,000, the case may be transferred to a federal court.  DePuy, which resides in Indiana, sought to have Ms. Kopitke’s case transferred to a federal court in Ohio where a Multidistrict Litigation (“MDL”) has been established to handle the many lawsuits that have been filed against DePuy alleging injuries sustained as a result of a defective artificial-hip-replacement system (“ASR”) manufactured by DePuy. The transfer would benefit DePuy because it would force Ms. Kopitke to consolidate her claims with the claims of other plaintiffs.

Ms. Kopitke argued that she was entitled to litigate her claims in Illinois’ state court because Premier likewise resides in Illinois.  DePuy responded by arguing that Ms. Kopitke could not establish a cause of action against Premier because it was an innocent distributor of the ASR rather than a manufacturer and that Ms. Kopitke fraudulently joined Premier as a defendant so that she could avoid having her case sent to the MDL.

Judge Darrah disagreed.  He remanded the case to Illinois’ state court holding that Ms. Kopitke’s Complaint sufficiently set forth allegations that Premier was not an innocent distributor, but rather knew the ASR was defective, communicated the defect to DePuy and nevertheless continued to distribute the ASR.  Judge Darrah even went so far as to point out the fact that Premier never moved for a conditional dismissal despite answering Ms. Kopitke’s Complaint, which suggests Premier’s concession that a sufficient claim was plead.

Having successfully established jurisdiction in the Circuit Court of Cook County, Illinois, Ms. Kopitke can avoid having to share her day in court with several other plaintiffs in an MDL likely to involve years of litigation and, instead, enjoy the convenience of litigating in her home state.  That is a significant victory for someone that has suffered a debilitating hip injury.