The Medtronic Infuse bone graft and LT Cage Device have become controversial due to safety concerns in recent years. Medtronic is facing a number of lawsuits alleging that the bone growth product has caused injuries. Now, three lawsuits over Infuse have been remanded to the Circuit Court. The plaintiffs are being represented by Parker Waichman LLP, Neblett Beard & Arsenault and The Drakulich Firm.
A remand is when an appellate court rules that a case should be returned to the trial court or a lower appellate court to proceed. For these three cases, the remand moved the litigation from federal court to the 22nd Judicial Circuit in the city of St. Louis under Judge John F. Garvey.
The U.S. Food and Drug Administration (FDA) approved Infuse in 2002. It is approved to stimulate spine growth in one type of spinal surgery for patients suffering from lower spinal degenerative disease, as well as some dental procedures. Infuse is not approved for use in the cervical spine, but it is frequently used off-label for this purpose. The plaintiffs in the cases similarly alleged that Medtronic engaged in fraudulent marketing and promotional schemes that pushed Infuse for unapproved uses. Off-label use of Infuse caused injuries, the plaintiffs alleged.
The parties being sued can move a lawsuit to federal court under certain conditions. Oftentimes, it is when the claim could have originally been filed in federal court. In order to oppose remand and be successful at removal, the party must establish federal subject matter jurisdiction. Medtronic alleged that the plaintiffs sought to have three cases tried as one, which would qualifies as a “mass action” under CAFA and therefore met the conditions of federal subject matter jurisdiction. The defendants claimed that the cases met the minimum requirements for CAFA of over 100 plaintiffs, minimum diversity and $5,000,000 recovery when combined.
In seeking remand, the plaintiffs stated that they never requested a joint trial and that Medtronic’s removal was untimely. The Court agreed, finding that the case lacked federal jurisdiction and should be subject to remand. All of the cases were consolidated for trial proceedings before being removed.
