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Gale v. Smith & Nephew PLC

United States District Court, S.D. New York

January 20, 2015

HOWARD GALE, Plaintiff,
v.
SMITH & NEPHEW PLC; SMITH & NEPHEW, INC.; SMITH & NEPHEW, GmbH; SPECIALTY ORTHOPEDICS, PLLC; and STEVEN B. ZELICOF, M.D., Defendants

For Howard Gale, Plaintiff: Gary Todd. Certain, LEAD ATTORNEY, The Certain Law Firm, PLLC, New York, NY; Michael Zilberg, The Zilberg Law Firm, Pllc, New York, NY; Victor M. Serby, Victor M. Serby, Woodmere, Ny.

For Smith & Nephew, Inc., Defendant: David O'Quinn, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA; Glenn Stuart Kerner, Nilda M. Isidro, Goodwin Procter, LLP(NYC), New York, NY; James Irwin, Kim Moore, Irwin Fritchie Urquhart & Moore LLP, New Orleans, LA.

For Specialty Orthopaedics, PLLC, M.D. Steven Zelicof, Defendants: Christopher A. Terzian, Bartlett, McDonough, Bastone & Monaghan, LLP(White Plains), White Plains, NY.

For Smith & Nephew, PLC, Defendant: Kelly Albinak Kribs, PRO HAC VICE, Sidley Austin, LLP (Chicago), Chicago, IL; Samuel Sung-Ook Choi, Sidley Austin LLP(NY), New York, NY.

For The Mount Sinai Hospital, Interested Party: Bettina Barasch Plevan, Rebecca Lynne Berkebile, LEAD ATTORNEYS, Proskauer Rose LLP (NY), New York, NY.

MEMORANDUM DECISION

Vincent L. Briccetti, United States District Judge.

Plaintiff Howard Gale brings this diversity action, alleging a variety of common law tort claims against Smith & Nephew, Inc. (" INC"), the manufacturer of plaintiff's hip replacement system (the " System"); Smith & Nephew PLC (" PLC") and Smith & Nephew, GmbH (" GmbH"), INC's foreign affiliates; Dr. Steven B. Zelicof, the doctor who performed plaintiff's hip replacement surgery; and Specialty Orthopedics, PLLC, Dr. Zelicof's employer.

Now pending is PLC's motion to dismiss for lack of personal jurisdiction. (Doc. #117). For the following reasons, the motion is DENIED.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.

BACKGROUND

In his second amended complaint (" SAC") (Doc. #90), plaintiff alleges PLC " is a company engaged in the business of designing, developing, testing, manufacturing, assembling, promoting, labeling, packaging, advertising, marketing, distributing, and selling medical devices, " including the System utilized in plaintiff's hip replacement procedure. (SAC ¶ 8). Plaintiff alleges PLC expected the System would be shipped, purchased, and used in New York, and thus, PLC " transacted business, " " committed tortious acts, " " made and performed contracts, " and " registered to conduct business" in New York. (Id. ¶ ¶ 24, 32-34). PLC argues it cannot be subjected to jurisdiction in New York based upon these allegations, and moves to dismiss the claims against it under Rule 12(b)(2).

It is undisputed PLC is organized under the laws of England and Wales with its principal place of business in London, England. It is also undisputed PLC wholly owns and has oversight authority over INC. However, the parties dispute PLC's contacts with New York.

Plaintiff relies upon the allegations of jurisdiction contained in the SAC, as well as an exhibit showing Dr. Zelicof was recruited by the Smith & Nephew companies to attend a training session in Birmingham, England, at which he observed procedures involving the System. (Certain Decl. Ex. 2) (Doc. #123-2). PLC has submitted affidavits, which, if ...


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