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This comes from the non-Reed Smith side of the blog.

Just over two weeks ago, the defendants in the Pinnacle Hip Implant MDL petitioned the Fifth Circuit for a writ of mandamus (see here) directing the trial court to enter judgment on a verdict rendered by a jury last March in the second bellwether trial, a verdict awarding a half-billion dollars to five plaintiffs.  Defendants needed a judgment to clear the way for an appeal of the trial court’s controversial evidentiary and procedural rulings in that trial, rulings about which we’ve blogged multiple times (here and here).  Defendants also asked the Fifth Circuit to direct the trial court to stay further bellwether trials (the third is scheduled for September) pending the Fifth Circuit’s review of those ruling so that, if they are overturned, the same rulings would not infect subsequent bellwether trials.  This petition was undoubtedly a Hail Mary. Writs of mandamus are rare.

But the defendants may have already won. Last week, the trial court entered judgment (and reduced the jury’s award as it was required to do by statute), and the defendants now can file a proper appeal to the Fifth Circuit.  To coopt Hemingway, the court entered that judgment in two ways: “Gradually, and then suddenly.” So, why suddenly?  Did the defendants’ petition prompt it?  Who knows?  But keep in mind that the trial court still hasn’t entered judgment on the first bellwether trial, even though the jury in that trial rendered its verdict well over a year ago.

Regardless of why it happened, it happened.  And now the defendants have half of what they were seeking.  They can appeal the rulings to which they have strongly objected since before the jury came back with its incredible half-billion-dollar verdict.  In fact, they now have multiple opportunities to explain their concerns to the Fifth Circuit.  They have already done so once with their petition, and they’ll do it again in the coming appeal.

Still pending, though, is defendants’ request that the Fifth Circuit direct the trial court to stay all future bellwethers.  And the third bellwether trial, with an incredible seven plaintiffs, is just two months away.  A stay still seems like a longshot.  But, in the least, the Fifth Circuit is now paying attention (it recently ordered plaintiffs to respond to defendants’ petition).

In any event, the next two months could certainly present more surprises.  The Fifth Circuit could order a stay.  The trial court could postpone the third bellwether trial.  Or it could decide to press forward as scheduled, something that it suggested recently by denying defendants’ motion to the trial court to stay the bellwether process, a decision that was already presumed when the trial court scheduled the third bellwether trial while the motion to stay was pending.  And, if the third bellwether trial does go forward in September, we wonder whether the trial court will continue to allow the type of questioning and evidence that it allowed in the last trial.

All of this is to say that this MDL remains worthy of close monitoring.  It gets more interesting with each new development.