United States District Court, W.D. Missouri, Western Division
ORDER GRANTING MOTION TO STAY
lawsuit arises from allegations that Plaintiff Douglas Tye
developed an infection as a result of the use of a Bair
Hugger warming device during his knee surgery. Mr. Tye and
his wife, Plaintiff Bettie Tye, have sued the maker of the
medical device, a Missouri-based salesman of the device, the
hospital were the surgery was performed, and various medical
providers-several of whom are Missouri citizens-for a variety
before the Court is Defendants 3M Company (“3M”),
Arizant Healthcare, Inc., and Kevin Acton's
(collectively, “the Moving Defendants”) Motion to
Stay (Doc. 7) pending transfer of this case to the United
States District Court for the District of Minnesota as part
of In re: Bair Hugger Forced Air Warming Devices Products
Liability Litigation, MDL No. 2666. 3M Company is
currently a defendant in several thousand other lawsuits
pending in this MDL which allege that the use of a Bair
Hugger patient warming system during surgery caused an
infection. Also pending before the Court are Plaintiffs'
Motion to Remand (Doc. 13), Plaintiffs' Motion for
Expedited Hearing and Ruling on Motion for Remand (Doc. 15),
and Defendant Kevin Acton's Motion to Dismiss (Doc. 16).
power to stay proceedings is incidental to the power inherent
in every court to control the disposition of the causes on
its docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. North Am.
Co., 299 U.S. 248, 254 (1936); Contracting Nw., Inc.
v. City of Fredericksburg, 713 F.2d 382, 387 (8th Cir.
1983) (holding district court has the “inherent
power” to stay litigation “to control its docket,
conserve judicial resources, and provide for a just
determination of the cases pending before it”). A stay
should be entered only where it is a proper exercise of the
court's discretion, Rhines v. Weber, 544 U.S.
269, 276 (2005), and the proponent of the stay bears the
burden of establishing the need for a stay. Nken v.
Holder, 556 U.S. 418, 433-34 (2009). In determining
whether to grant a motion to stay where an MDL transfer is
pending, a federal court balances three factors: “(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.” Buie v. Blue Cross & Blue Shield
of Kansas City, Inc., No. 05-0534-CV-W-FJG, 2005 WL
2218461, at *1 (W.D. Mo. Sept. 13, 2005).
Moving Defendants argue Plaintiffs will not be prejudiced by
a stay, but if the case is not stayed, they will be subject
to duplicative litigation and inconsistent rulings on a
variety of subjects, including jurisdictional issues, between
this case and the MDL cases. Further, a stay will conserve
judicial resources and ensure uniform adjudication of these
issues. The Moving Defendants note Judge Gaitan recently came
to the same conclusion in a similar case involving a Bair
Hugger warming device. See O'Haver v. Anesthesia
Assocs. Of Kansas City, P.C., No. 19- CV-0037-FJG (W.D.
Mo. Mar. 25, 2019) (finding “the O'Haver action
involves common questions of fact with actions transferred to
the MDL No. 2666, and that transfer will serve the
convenience of the parties and witnesses and promote the just
and efficient conduct of the litigation.”)
respond that this Court lacks subject matter jurisdiction
because Plaintiffs and some Defendants are Missouri citizens,
and they deny any Defendants were misjoined or fraudulently
joined. They contend Defendants had no reasonable basis for
removing the case, and they note the Court is not required to
stay proceedings pending possible transfer to an MDL. They
argue this Court should consider the merits of their motion
to remand, and grant it. They cite in support this
Court's decision in Davidson v. Poppa, No.
4:15-cv-0243-DGK (W.D. Mo. May 15, 2015) (denying motion to
stay and granting remand before the Judicial Panel on
Multidistrict Litigation had decided whether to transfer to
the MDL presiding over Durom Hip cases).
Court finds: (1) Plaintiffs will not be prejudiced by a stay;
(2) Defendants are highly likely to be subject to prejudice
in the form of duplicative litigation and inconsistent
rulings if this case is not stayed; and (3) if this case is
accepted for transfer to the MDL, it would avoid duplicative
litigation. Thus, staying the case until the Judicial Panel
on Multidistrict Litigation rules on transfer is preferable.
Plaintiffs have a colorable argument that the Court lacks
subject matter jurisdiction, granting the stay does not mean
this question will go unanswered. Either this case will not
be transferred to MDL 2666 and this Court will consider the
jurisdictional issue, or this case will be transferred to the
MDL and another federal judge will address it. Either way,
Plaintiffs' jurisdictional arguments will be considered.
Court's decision in Davidson v. Poppa is
distinguishable and involved a unique set of circumstances.
In Davidson, after requesting an extension of time
to respond to plaintiff's motion to remand, the
defendants filed a notice stating that they were foregoing
their opportunity to respond to the motion to remand. See
id. (Doc. 15 at 1) (“The defendants . . .
respectfully advise the Court that they have elected not to
respond without prejudice to Plaintiff's Motion
to Remand (Doc. 9) filed in this matter.”). A defendant
removing a case to federal court and then not opposing remand
is a rare occurrence. That is certainly not the case here.
Hence, the result in Davidson possesses little, if
any, precedential value.
Motion to Stay (Doc. 7) is GRANTED. Plaintiffs' Motion
for Expedited Hearing and Ruling on Motion for Remand (Doc.
15) is DENIED AS MOOT.