We can’t say much about the Neurontin litigation because our firm has some involvement, but anybody who has to oppose a third-party payer action brought as a class action should read In re Neurontin Marketing and Sales Practices Litigation, ___ F. Supp.2d ___, 2010 WL 53568 (D. Mass. Jan. 8, 2010). The case decides various
We fight with plaintiff lawyers all the time. Some mornings we roll out of bed and immediately start swinging. So we love it when plaintiff lawyers decide to mix it up with us, grab a pen (or keyboard), and write rejoinders to our blog posts. Recently, Nuvaring plaintiff lawyers wrote an article in Product Liability
Remember the old SNL Weekend Update report: “This just in, Generalissimo Francisco Franco is still dead”? In that spirit, we bring you today’s post.
In the wake of the Chinese heparin scandal, the FDA has promised stepped-up enforcement of CGMP (see one report on the FDA Law Blog, here). And where there is
Just before the new year Medtronic’s litigation team brought home yet another preemption win that bears discussion. In Ilarraza v. Medtronic, Inc., slip op. (E.D.N.Y. Dec. 28, 2009), the plaintiff took one look at the law of preemption (but only after filing suit); filed an amended complaint that dropped all his prior claims (the
Remember Gresham’s law? If you ever suffered through Econ 101 in college, chances are you do. That’s the proposition that “bad money drives out good.” More generally, what Gresham’s law is all about is that if there’s a choice between doing something the “good” way and doing the same thing by way of some “bad” shortcut, if the shortcut is allowed, everybody will go that way. “Good” can be enforced through everything from legal sanctions (don’t commit fraud) to moral suasion (signs in the wilderness stating that “cutting switchbacks damages the trail”).
But if “bad” is not only allowed, but rewarded, then “bad” will definitely replace the corresponding “good.”
Well, Tom Gresham, meet mass torts.
The Eighth Circuit handed down a stinker of a ruling yesterday in In re Prempro Products Liability Litigation, No. 09-1205, slip op. (8th Cir. Jan. 6, 2010) (hereafter “PPLL”). As the name indicates, it arose from the Prempro MDL. But the identity of the drug hardly matters – or even whether the product was a drug. It could be any mass tort, as far as we’re concerned.
That’s also convenient because Dechert is now involved in the litigation involving these products, so we have to steer away from anything concerning the merits of that litigation.
So what happened in PPLL? It’s the latest round in the endless tactical tug of war between plaintiffs who prefer to litigate in state court (elected judges, more home cooking, less strict rules on everything from pleading to class actions to experts) and defendants who prefer to litigate in federal courts (lifetime tenured judges, more resources = more opinions, stricter rules, etc.). It involves something called “fraudulent misjoinder.”
What’s that? Well, under the rules, every plaintiff is supposed to file his/her/its lawsuit individually. That means pay the court’s filing fee (one way the judicial branch supports itself), and have jurisdiction – importantly, diversity jurisdiction – determined by who the parties are. (Aside for non-lawyers: “diverse” = plaintiff and defendants are citizens of different states; “non-diverse” = citizens of same state on both sides of the “v.”).
There are exceptions. Federal Rule 20 governs “permissive joinder.” It provides that plaintiffs or defendants may be “joined” in the same lawsuit if there’s a claim (called a “right to relief”) asserted either by more than one plaintiff or against more than one defendant: (1) that involves (called “arising out of”) “the same transaction, occurrence, of series of transactions or occurrences” and (2) “any question of law or fact common to” all plaintiffs or defendants “will arise in the action.”
“Misjoinder” is any joinder of parties that’s in violation of Rule 20 (or an equivalent state court rule).Continue Reading Gresham’s Lawyers
We’ve been critical of the non-management of pleading issues in the Nuvaring MDL (see here).
We’re not going there again today. Rather, we’re discussing how these issues can be handled – even if there’s not technically an MDL.
Kudos to New Jersey District Court Judge Freda Wolfson, who is handling consolidated (non-MDL) litigation concerning the drug Plavix. She had 24 individual actions from sixteen states all alleging injury from the same drug. Taking this dilemma by the horns, Judge Wolfson refused to allow plaintiffs to get away with vaguely pleaded claims by obscuring them in a legal thicket of multiple different jurisdictions’ consumer fraud and negligent misrepresentation causes of action.
See: Hall v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121057 (D.N.J. Dec. 30, 2009) (applying Florida law); Begley v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121058 (D.N.J. Dec. 30, 2009) (applying Illinois law); Bunting v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121059 (D.N.J. Dec. 30, 2009) (applying Colorado law); Smith v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121062 (D.N.J. Dec. 30, 2009) (applying Pennsylvania law); Barge v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121080 (D.N.J. Dec. 30, 2009) (applying Georgia law); Robinson v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121082 (D.N.J. Dec. 30, 2009) (applying Maryland law); Moscinski v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121084 (D.N.J. Dec. 30, 2009) (applying Wisconsin law); Solomon v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121092 (D.N.J. Dec. 30, 2009) (applying Texas law); Gonzalez v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121093 (D.N.J. Dec. 30, 2009) (applying New York law); Money v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121094 (D.N.J. Dec. 30, 2009) (applying Oklahoma law); Cooper v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121095 (D.N.J. Dec. 30, 2009) (applying Alabama law); Adkins v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121096 (D.N.J. Dec. 30, 2009) (applying Tennessee law); Mattson v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121114 (D.N.J. Dec. 30, 2009) (applying California law); Mayberry v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121115 (D.N.J. Dec. 30, 2009) (applying Mississippi law); Street v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121120 (D.N.J. Dec. 30, 2009) (applying Ohio law); Carr-Davis v. Bristol-Myers Squibb Co., 2009 U.S. Dist. Lexis 121155 (D.N.J. Dec. 30, 2009) (applying Missouri law).
As you might think, a lot of water went under the bridge to reach this point. Between October 2006 and March 2007, 24 individual cases were filed against Bristol-Myers Squibb and Sanofi-Aventis about the drug Plavix. The plaintiffs, who were from all over the United States (but not from New Jersey), invoked diversity and asserted claims under, of all things, New Jersey law.Continue Reading Mopping it up
This just in: The Eighth Circuit has affirmed the Baycol MDL judge’s authority to enjoin the plaintiffs, after losing a class certification motion in the MDL, from running to a (presumably) friendly state-court judge to get the same class certified. Here’s a link to the opinion.
What happened is that one West Virginia law based consumer fraud (that is, economic losses only) class action was removed to federal court and became part of the Baycol MDL. Class certification was denied. In re Baycol Products Litigation, 218 F.R.D. 197, 202 (D. Minn. 2003) (omnibus complaint); In re Baycol Products Litigation (McCollins), No. 02-0199, slip op. (D. Minn. Aug. 25, 2008) (West Virginia specific order).
While all this was going on, a second, substantively identical class remained in West Virginia state court because there was no diversity of citizenship. After none of the federal decisions, the West Virginia plaintiffs pressed for certification in the parallel state court suit. Slip op. at 4-5.
The defendant sought to enjoin prosecution of the West Virginia do-over in state court, and the MDL judge granted the injunction.
As the Eighth Circuit observed, these kinds of forum-shopping shenanigans by plaintiffs looking for a do-over can’t happen any more, thanks to CAFA. Slip op. at 3.Continue Reading Baycol Class Action End Run Stuffed
The New Yorker occasionally runs squibs called “There’ll Always Be an England”– little ditties highlighting charming English eccentricity, often involving gardening for some reason.
We’re thinking of posting entries called “There’ll Always Be Posner,” comments on opinions by Judge Posner, which typically are brilliant and snappily written, typically address jurisdictional issues that nobody raised, typically