Don’t get us wrong. We’re delighted to practice drug-and-device law. It’s an important, interesting, and dynamic field, and we’d never think of abandoning it. At cocktail parties people gather around and chat with us about the latest mass tort. (We hang out with a nerdy crowd.) By contrast, the ERISA, tax, and structured finance lawyers linger in the corners alone, staring glumly into their chardonnay.

And yet, law school geared us up for a very different array of cases. We were looking forward to helping folks sort out who got to keep the fox carcass. For that matter we figured that animals would figure in lots of our matters: the mouse in the soda bottle, the surprisingly and suddenly pregnant cow, and the sheep pitched overboard in the storm. And we thought we’d be dealing with an even odder menagerie of people, including the hapless lady concussed at the train station and the extraordinarily frisky old guy in Florida. We were even ready to navigate the Rule in Shelley’s Case.

Truth be told, if we ever really did encounter those old legal chestnuts, we’d risk serious malpractice, like the William Hurt character in Body Heat. One of our few fond memories of law school is recommending that movie to our trust-and-estate professor because its action hinged on the Rule against Perpetuities. He made the mistakes of taking our advice and taking his wife to the theater. Professor and spouse were both disappointed and astonished by the film’s focus on the carnal rather than the legal.

Dang it all, couldn’t we please handle some trover and replevin, for old times’ sake?

Well, it turns out that we can. We blogged a little more than a year ago about the case of Hunt v. DePuy Orthopaedics, No. 03-900 (RWR), 2009 U.S. Dist. LEXIS 61644 (D.D.C. July 20, 2009). Plaintiff in that case underwent hip replacement surgery in 1994, and that surgery apparently didn’t work out so well. In 1999, Plaintiff underwent a repair surgery during which the original implant was removed. After the 1999 surgery, a DePuy representative received permission to take the original implanted hip device. In 2003, Plaintiff asked for return of the explanted hip. DePuy did not return the hip. Later that year, Plaintiff sued DePuy for breach of express warranty (that the hip would last “25 years to life”), breach of implied warranty, and – ta da! — replevin.

We don’t know why Plaintiff wanted her old artificial hip back. As evidence for the warranty claims? Or maybe it’s like when the auto mechanic replaces your fan belt and gives you the old one in a big Ziploc bag, just to prove that he really did install a new one. Does anybody keep those old parts?

Plaintiff abandoned (remember that word) her express warranty claim, so the court dismissed it. The federal court then decided that D.C. substantive law on the statute of limitations applied to the implied warranty and replevin claims. The four year statute of limitations for breach of implied warranty began running on the date of the surgery — January 10, 1994 — so the 2003 claim on that theory was time-barred.

The statute of limitations for replevin was three years. At first blush then, it looks like the replevin claim was also time-barred. But replevin is an action “brought to recover personal property to which the plaintiff is entitled, that is alleged to have been wrongfully taken or to be in the possession of and wrongfully detained by the defendant.” D.C. Code section 16-3701. According to Plaintiff, Defendant “wrongfully detained” the hip starting in 2003, when DePuy declined Plaintiff’s request for return of the hip. Thus, the replevin claim eluded the statute of limitations and was the only claim Plaintiff had left.

At this point, Bexis/Herman offered their Solomonic advice to settle the case. No, they didn’t suggest that the old hip be sawed in half. They suggested that the defendant either return the explanted hip or tell plaintiff if it no longer existed. Easy-squeezy. That would be that.

But that wasn’t that.

Last week the court granted summary judgment on the replevin claim, reasoning that because plaintiff had waited four years to bring her claim, she had effectively abandoned the hip. Hunt v. DePuy Orthopaedics, Inc., 2010 U.S. Dist. LEXIS 78536 (D.D.C. August 4, 2010). We’ll get to that abandonment theory in a moment. We still have to wonder why Defendant didn’t follow our advice. Was it worried about some sort of spoliation? Did it want to hold on to the old hip, the way Philadelphia’s fabulous Mutter Museum keeps various medical oddities in display cases and drawers? We just don’t know.

Of course, that’s a persistent problem with outsiders commenting on legal disputes. Most of the time, we know only what we read in the papers — or F. Supp. or F.3d — so we might not be getting the whole story. Anybody who’s worked on a litigation and then seen the facts recited in an opinion — or worse, a newspaper — knows how much the public story and the reality can diverge. But even if a published opinion has an element of fiction to it, it’s a fiction that we must respect. That, after all, is why tomatoes are vegetables. Nix v. Hedden, 149 U.S. 304 (1893). So we won’t let a little epistemological humility stop us from thinking that our advice for settling the Hunt case should have been followed. (And the advice was free! Hmmm, maybe that’s why. After all, you get what you pay for.)

We see the abandonment theory about as often as we see replevin cases. A jury consultant once told us that every drug-and-device case follows the romance novel story of (1) you seduced me, (2) you lied to me, (3) you injured me, and (4) you abandoned me. But that’s a different abandonment. Of course it’s not that unusual for parties to abandon some legal theories on appeal.

There is statutory abandonment, such as abandonment by a bankruptcy trustee under 11 U.S.C. section 554. There is common law abandonment of a variety of legal interests, such as easements, domiciles, or trademarks. One can also abandon all sorts of real and personal property. Under D.C. law, a party can prove abandonment by demonstrating “both an intent to abandon [isn’t it miserable when a definition includes the defined term?] and an act or omission that effectuates the intention.” Block v. Fisher, 103 A.2d 575, 576 (D.C. 1954). Here, Plaintiff presented no evidence that when she agreed in 1999 that DePuy could take the old hip it was “her intent that DePuy hold the components for safe-keeping until she requested their return in 2003.” Hunt, 2010 U.S. Dist. LEXIS 78536, *5. During the four years between the surgery and the filing of the lawsuit Plaintiff never asked for return of the hip, never said the possession should be temporary, and never sought assurance of the hip’s safekeeping. The only fair inference is that Plaintiff abandoned the property.

It’s hard to argue with the D.C. court’s conclusion. In fact, we’d like to see the abandonment theory applied to many more cases. There are MDL’s where plaintiffs have gone unheard of, or from, for well more than four years. We’re only half-serious here, but there is that half. There’s something wrong with a mass tort system that allows thousands of plaintiffs to park their cases in the ether, where they go untested for the life of the litigation. It’s that sort of thing that quickens our nostalgia for Pierson v. Post or Rose the Second of Aberlone.