Google Judge Manuel Real of the Central District of California. Go ahead. We’ll wait.
Pretty amazing career, right? Since he took the bench in 1966, Judge Real has been at the center of controversies. In the 1970s, he entered an order desegregating the Pasadena school system. Predictably, that gave rise to dispute and criticism. But most of the criticism of Judge Real has come from criminal defense lawyers. And yet, Judge Real has also often found creative ways around sentencing guidelines and mandatory minimums to give first time offenders a second-chance. The Ninth Circuit has made a sport of reversing Judge Real, and has several times gone so far as to order that a new judge handle further proceedings. Of course, that’s the Ninth Circuit, so it might amount to a badge of honor. And then there’s this: everybody we know who knows Judge Real on a personal level talks about what a warm, caring man he is. And patriotic. Judge Real’s chambers are decorated with American flags (Larry Flynt’s desecration of a flag during a court proceeding led to one of the more colorful moments in Judge Real’s career, the depiction of which by Hollywood was more creative than accurate), and Lincoln memorabilia.
See, there’s a President’s Day tie-in after all.
Anyway, our own contacts with Judge Real, on both the criminal and civil side, have always left us favorably impressed. Yep, that means we won. But the fact is that Judge Real’s rulings are invariably clear and direct. We wrote here not too long ago about an eminently sound decision by Judge Real in Pain Pump litigation, where Judge Real insisted that plaintiffs name which manufacturer made the device at issue, instead of just listing all of them. Shocking, huh?
Last week we received another example of clear, direct thinking in a pacemaker case. In Cohen v. Guidant Corp., 2011 WL 637472 (C.D. Cal. Feb. 15, 2011), Judge Real dismissed a pacemaker case on grounds of preemption and want of injury, facts, and particularity. The dismissal was with prejudice because this was the second time around.
The plaintiff had a pacemaker implanted in 2004. He later learned from news reports that pacemakers like his were failing. Understandably, that news upset him. The plaintiff faced a tough decision: undergo surgery or wait for something bad to happen. What to do? The plaintiff filed a lawsuit.
In 11 paragraphs, Judge Real explains why the case must fail. We’ll try to be at least as brief as Judge Real:
— The pacemaker is a Class III device, so Riegel preemption applies. The plaintiff cannot avail himself of the “parallel” claim exception because the Second Amended Complaint supplies no “factual detail” as to what FDA law/regulation was violated, and no “causal nexus between the alleged injury and the violation.” Guess what? That’s true in almost every parallel claim case. Judge Real is right on this issue, and all those judges who spend pages doing their best Jacques Derrida imitation to rescue parallel claims are wrong. Judge Real rejects “boilerplate” allegations of FDA violations. He’s right. Those judges who wave by those boilerplate allegations are wrong. (We’re talking about you, Bausch.)
— Fear of future injury is not cognizable under California law. Yeah, there’s some some batty California precedent out there, but Judge Real simply says it is “distinguishable and not persuasive.” Back of the hand? Yes. Detailed reasoning? Nope. But is Judge Real right? Yes.
— The plaintiff’s fraud claims failed under Fed. R. Civ. P. 9(b) because the alleged frauds either related to other devices or resided on websites that the plaintiff never saw.
— The Second Amended Complaint offered a “formulaic recitation” of the causes of action. Twombly and Iqbal say that’s not enough. Judge Real followed that law.
Maybe somebody someday will find some way to add the Cohen decision to the list of reasons why Judge Real is an especially tough judge. Maybe the better description is that he is a no-nonsense judge. We don’t think it’s so bad to be against nonsense.