Photo of Eric Alexander

We typically leave it to others to review movies or television shows in the course of a post.  Sure, we will throw in a quote or reference from time to time, but that is about it.  We had the misfortune to watch the purported “thriller” I, Frankenstein recently and we thought we should share.  The film had more holes than a hunk of emmentaler.  It featured Aaron Eckhardt in another film with his face disfigured and Miranda Otto in a role not befitting a shieldmaiden of Rohan.  Its plot was tied loosely to the familiar Frankenstein story, itself based on older golem tales. Doctor Victor Frankenstein combined parts of corpses into a monster, which he animated with the charge from electric eels (without explanation of their importation to Eastern Europe).  The monster is not human, mortal, or terribly pleased to exist at all.  (He also does not enjoy hot soup ladled into his lap.)  Things go wrong, many years pass, and there is some ludicrous eternal battle between demons and gargoyles/angels into which the monster becomes embroiled.  Anyway, with omitted air quotes throughout, the monster is special because he was dead, is now alive, lacks a soul, and cannot die (except maybe if a demon skewers him).  The movie ends without anything particularly surprising or interesting happening, let alone anything that would make the viewer care about any character in it.

The plaintiff in Keeton v. Ethicon, Inc., No. 2:13-cv-24276, 2014 U.S. Dist. LEXIS 135327 (S.D. W. Va. Aug. 8, 2014), tried to reanimate her claim with a “Frankensteined” complaint—the court’s novel term and inspiration for our oh-so-clever post.  In, perhaps, a mild surprise, she was utterly unsuccessful, at least if the Report and Recommendation (R&R) of the Magistrate is followed.  It looks like it took more effort that it should have, in part because the plaintiff was now going pro se, and the recommended dismissal of the pending case would be without prejudice for some reason, but res judicata acted as monster bane.

While Keeton’s case history had some quirks, the basic issue of early plaintiffs in serial product liability litigation trying to get back in line again after their first case has ended definitively does come up fairly often.  It is sometimes the case that plaintiffs who sue over a product before a significant regulatory event, the release of a key study, or just the wave of other cases over the same product, lose their case or settle fairly cheaply.  Undeterred by the idea that the judgment in their case was really final—or that the release they signed meant what it said—some of these plaintiffs try to sue again over the same injury from the same product.  There are any numbers of reasons why they might think they should get to sue again—greed and ignorance of the legal system come to mind—but the ethical duties of a lawyer who might bring a second suit should serve as some check against frivolous re-litigation.  We say “should,” knowing that some lawyers do not bother to ask if their client has already sued or weakly accept a denial or that question.  When the plaintiff represents herself for the second suit, not only is there no such check, but the court may cut some slack not afforded to a represented party.

With these considerations in mind, the result in Keeton is reassuring, particularly as it comes from a litigation that has produced a large, mixed bag of opinions.  See, e.g., here, here, here, here, here, here, and here.  Keeton brought suit in Florida state court in 2005 against three companies involved in the manufacture of a synthetic midurethral sling that she says caused her to develop infection and internal injuries.  After the case was removed to the Southern District of Florida and discovery concluded, the defendants moved for summary judgment on all of the claims—a range of product liability theories—that plaintiff had asserted.  Because of a mixture of failure to come forward with evidence on causation and the exclusion of her expert testimony on defect, the defendants won.  The plaintiff lost a motion for reconsideration and filed an appeal to the Eleventh Circuit, which was dismissed for failure to prosecute.  That sounds like an easy law school hypothetical on whether there is a final judgment and it all happened by March 2008.

Although not discussed in the R&R, after March 2008, FDA issued two public health notifications on trans-vaginal placement of surgical mesh and a flood of advertising by plaintiff lawyers helped produce tens of thousands of pending cases against manufacturers of various trans-vaginal mesh products, centered in MDL proceedings in the Southern District of West Virginia.  One MDL involved claims about the sling that Keeton had sued over before, along with other products made by the companies that Keeton had sued before.  So, with or without first trying to get a lawyer to sue for her, Keeton decided to join the fray and filed a complaint in the MDL court in October 2013—about six years after summary judgment was granted in her first case.  As in many coordinated proceedings, plaintiffs in this MDL were directed to use an approved Short Form Complaint with boxes to check for the product(s) at issue, the defendants, and the asserted claims. Plaintiff, either because she was pro se or because she knew she was not really allowed to sue again, “took the first page of the approved complaint and attached it to four unapproved pages, then filed the ‘Frankensteined’ pleading.  It appears Keeton intentionally reworked the Short Form Complaint for the sole purpose of naming [six corporate entities she did not sue in her first case], none of which were otherwise listed as defendants on the Short Form Complaint.”  These entities were not actually parties because they had never been served; the Short Form Complaint, of course, only gave the option of naming as defendants those entities that had been served.  So, there were procedural problems that would have required repleading.

The more important issue, though, is that the case should not have been revivable with any version of a complaint.  Skipping over the choice-of-law issues and fairly rote requirements of res judicata, plaintiff offered three basic arguments for why she should get to sue again.  First (according to our re-ordering of her arguments), she said the prior case did not result in a final judgment because her appeal of summary judgment was dismissed rather than denied on the merits.  (She also said the dismissal was because the defendants failed to prosecute it, but that was about the moot cross-appeal.)  If a represented party had made this argument, there might have been a Rule 11 letter, so it was easy to reject this frivolous argument.  Second, she argued that “suing” six additional entities meant that there was not an identity of the parties in the two actions.  As noted above, the new parties were not really in the second case, so they could be ignored.  In addition, under both Florida law and federal common law on res judicata, the “privies” of a party are not considered separate entities.  “[O]nce a plaintiff elects to sue one participant in the chain [of distribution] and proceeds to a judgment, he cannot relitigate the same issues against others in the distribution line.” Over the course of a litigation, plaintiffs do tend to name more and more related entities they claim to learn about in discovery (or realize might help them on removal), so this is a useful soundbite.

Last, plaintiff argued that she had read the transcripts of a 2013 trial over a different pelvic mesh product made by defendants and concluded that evidence presented at that trial must have been wrongfully withheld from discovery in her first case, making the judgment against her fraudulently obtained.  This argument also failed, because it “does not affect the validity or finality of the judgment against her, and her remedy is to file a motion for relief from that judgment under Federal Rule of Civil Procedure 60” back in the Southern District of Florida.  We do not know if such a motion will be made, but the threshold for resuscitating a case seven years after summary judgment was granted based on lack of admissible expert testimony should require more amperage than plaintiff’s claim of missing discovery seems to have.  At least, down in South Florida, it should be easier to import some electric eels from South America to help her cause.