While we were watching the run-up to the Supreme Court argument in Wyeth v. Levine, Judge Michael Davis issued a little ditty in the Baycol MDL. In re Baycol Prods. Liab. Litig., MDL No. 1431, Case No. 02-0160 (MJD/SRN), slip op. (D. Minn. Oct. 31, 2008).
Plaintiff, Joseph Landrieu, is an 80-year-old Louisiana resident. His medical history includes coronary artery disease, hypertension, cervical spondylosis, lumbar disc syndrome, back surgery, kidney cancer, and Parkinson’s disease. Slip op. at 10. He took Baycol and later had a heart attack and suffered from “physical weakness.” Id. at 10-11. Landrieu then filed a putative class action complaint on behalf of all Louisiana residents who “have taken Baycol, and who have suffered injury, may suffer injury in the future or who fear a risk of future injury.” Id. at 6.
Note to professors teaching complex litigation: This puppy would make a pretty nice exam question, wouldn’t it? Just give the students those three sentences, and then ask: “Why isn’t this case suitable for class certification?” (Make sure it’s a three-hour exam, to give students enough time to write the complete answer.)
But we digress.
Bayer filed a motion to deny class certification and for summary judgment of Landrieu’s claim. Id. at 2.
Landrieu’s lawyers tried to invoke the age-old adage, “He who fights and runs away lives to fight another day.” Instead of opposing Bayer’s motion, they filed a motion to dissolve the MDL proceeding and have the MDL judge remand Landrieu’s case to the federal court in which it had been filed. (The opinion doesn’t tell us which court that was, but we’d bet it’s the Eastern District of Louisiana.)
That tactic makes sense: If you know you’re gonna lose in Minneapolis, catch the next train out of Dodge. (Well, okay: Catching the next train out of Minneapolis would make more sense, but that doesn’t sound nearly as folksy.)
Judge Davis would have none of it.
He trotted through the precedents discussing when MDL transferor courts should remand cases. Judge Davis then concluded that “based upon the long-term duration of the Baycol MDL, and the extensive background, expertise, and knowledge acquired by this Court over the course of this litigation, in conjunction with the fact that this Plaintiff will still benefit from participation in the MDL, Plaintiff’s motion to dissolve this MDL and to suggest remand is denied.” Id. at 6.
Ain’t no train leaving Dodge today.
That left Landrieu in Minneapolis — and he who fights but stays nearby is surely destined soon to cry. (Lodge your complaints in the “comments” section. We’re having fun today.)
Judge Davis had previously denied class certification of the Baycol injury cases because “individual issues of fact and law disqualify actions, such as this, for class certification.” Id. at 7. That ruling applied equally to Landrieu’s putative class.
The court then granted summary judgment on Landrieu’s individual claims.
Landrieu claimed “that Baycol caused his heart attack, permanently damaged his kidneys and muscles, and [caused his] physical weakness.” Id. at 11. All three of his treating physicians, however, begged to differ. In the words of one of the three, it “‘seems unlikely’ that a statin was causing Plaintiff’s problems [and] that it was more likely his ‘documented osteoarthritis and the cervical disk disease and arthritis and the other Parkinson’s things and stuff.'” Id. (Don’t worry, doc: We don’t insist on proper grammar when you’re giving us testimony like that.)
Remarkably, even Landrieu’s case-specific expert didn’t offer the opinion that was needed to get this case to a jury. During his deposition, Landrieu’s expert “conceded that it was improbable that Baycol caused Plaintiff to have a heart attack,” and that “it was more likely than not that he did not suffer muscle damage as a result of taking Baycol.” Id. at 12. With testimony like that, we’d be hopping a train out of town, too, if we represented the plaintiff. (Yo, Bexis: Are we permitted to type those words on this blog, even in the subjunctive: “if we represented the plaintiff”? We’ll have to make a policy decision on that.)
And so it ended. Judge Davis denied the motion to dissolve the MDL and remand Landrieu’s case, granted the motion to deny class certification, and granted summary judgment on Landrieu’s individual claims.
The next fight will be on another day, and with a different plaintiff.