While it remains true that our role in bringing about the Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), preemption decision is probably the highlight of our (read Bexis’) legal career to date, sometimes there may be reasons when we don’t want to rely upon the Buckman Court’s preemption-based analysis for why
Here’s an interesting case, Ray v. Allergan, Inc., ___ F. Supp.2d ___, 2012 WL 1979226 (E.D. Va. June 1, 2012), sent to us by Gary Spahn, of Troutman Sanders (who helped brief the case). In Ray the court overturned a plaintiff’s verdict of over $12 million − notable in itself (way to go, Gary).
For some reason, when we identify three things in a group, in our heads we hear them to the beat of “lions and tigers and bears, oh my!” from the Wizard of Oz. It works with lots of things – apples, bananas and pears, oh my; iphones, droids and blackberries, oh my; vanilla, chocolate and strawberry, oh my! And then that got us thinking about other things that come in threes. Three strikes and you’re out and three goals in a hat trick. There were Three Stooges (OK, technically there have been more Stooges, but we won’t go there) and Three Musketeers (again, you can argue with us about D’Artagnan). There are three Jonas Brothers and there were three Bee Gees. Now, we feel like we are on an episode of the $10,000 Pyramid: Blind mice, men in a tub, sheets to the wind – “things that come in threes.”
All that to segue into today’s case which touches on three of our favorite topics – fraudulent joinder, TwIqbal, and MDLs. The case – Johnson v. DePuy Orthopaedics, Inc., 2012 U.S. Dist. LEXIS 74450 (N.D. Ohio May 30, 2012) is one of eleven essentially identical cases to be decided in the ASR Hip Implant MDL. And, we are happy to report that the court decided that a claim brought against a local distributor constituted fraudulent joinder. And, we are even happier to report that in reaching that conclusion, the court applied TwIqbal pleading standards to the motion to remand.
The context is quite familiar in our line of work. Plaintiff sues diverse manufacturer and non-diverse distributor in state court; manufacturer removes to federal court on grounds of fraudulent joinder; plaintiff moves to remand; case gets transferred to MDL.Continue Reading Fraudulent Joinder, TwIqbal & MDLs, Oh My!
Because Bexis’s firm is involved in the Pelvic Mesh litigation, he is not involved in this post about yesterday’s opinion of the New Jersey Appellate Division in In Re Pelvic Mesh/Gynecare Litig., No. A-5685-10T4, slip op. (N.J. Super. App. Div. June 1, 2012).
We wish it wasn’t so newsworthy, but defendants in New Jersey have had a devil of a time getting the same opportunity as plaintiffs in mass torts to obtain certain important evidence. And now, so sayeth the Appellate Division.
Here’s what happened. The Pelvic Mesh mass tort involves several hundred plaintiffs. After first precluding defendants from informally contacting plaintiffs’ treating physicians – ordinarily allowed under Stempler v. Speidell, 495 A.2d 857 (N.J. 1985) – the court entered an order precluding any defendant from using as an expert witness any physician who had ever treated or consulted with any plaintiff, even though that plaintiff was not the subject of the expert testimony. As described by the Appellate Division:
[T]he [trial] court issued an order and written decision dated May 26, 2011, barring defendants from consulting with or retaining any physician who had at any time treated any plaintiff in the pelvic mesh litigation. . . . At the time of the court’s order, the number of plaintiffs had risen to more than 220. Defendants estimated that more than 1,000 physicians were thus disqualified as potential defense experts.
Pelvic Mesh, slip op. at 8-9.
The result was predictable. The plaintiffs in that litigation had the opportunity to try to retain as an expert any physician in the relevant specialties. The defense, on the other hand, was prevented from retaining a significant number of the available experts, disproportionately including the most active specialists with the largest practices.Continue Reading News Flash: Mass Tort Defendants in New Jersey Entitled to Level Playing Field