With one sentence, a circuit judge signaled yesterday that the Fifth Circuit is watching with acute interest what’s going on in the Pinnacle Hip Implant MDL in Dallas:
Although the district court misapplied Rules 43(a) and 45(c), I concur in the denial of the petition for a writ of mandamus.
Oh my. While that may not be a shot across the bow of the MDL bellwether process, it’s an attention-grabber.
Technically, this was a loss for the defendants. They asked the Fifth Circuit to direct the MDL court to vacate an order authorizing plaintiffs to subpoena company witnesses no matter where they are in the country to testify at a bellwether trial via satellite or other contemporaneous transmission. And the Fifth Circuit denied the petition. But petitions for writs of mandamus are always lost. The possibility of victory is so slim that the legal background sections of most petitions actually find it useful to argue that it is untrue that writs of mandamus are “never” issued. It’s only “hardly ever.”
But the one-sentence concurrence by Circuit Judge E. Grady Jolly is a victory of other sorts.
First, it announces that the MDL court got it wrong. The MDL court issued a blanket order authorizing the contemporaneous transmission testimony. Yet the Advisory Committee notes to FRCP 43(a), which addresses trial testimony in open court, say that video trial depositions are preferred to contemporaneous transmission testimony and, as in every drug or device mass tort, plaintiffs have already taken trial-ready video depositions of the company witnesses and those videos are available to be played to the jury at trial. Also, the MDL court analyzed no individual facts or circumstances of specific witnesses before issuing its blanket order, even though FRCP 43(a) authorizes courts to accept contemporaneous transmission testimony only for “good cause in compelling circumstances.” The court also ignored FRCP 45’s 100-mile rule, instead twisting it to require potential witnesses across the country to go to a courthouse within 100 miles of them to testify by satellite. Requiring company witnesses to testify live (and prepare), trial after trial, will burden witnesses and, in the end, it will pressure the defendants. It’s meaningful that there is now a concurrence stating that the MDL court misapplied the federal rules.
Second, and more interesting, the concurrence could elicit practical responses from the MDL court. For instance, will it take the hint and vacate its order? That certainly seems advisable—or, at least, it is advisable to reconsider it. Also, while a “mode of testimony” issue is not an easy issue to tee-up in a post-trial appeal, the Fifth Circuit may be more willing in this instance to take it up—or, at least, speak on it—given that it already signaled to the MDL court its importance.
Additionally, the appeal of the second bellwether trial will be heard soon enough by the Fifth Circuit, and that will involve the many controversial evidentiary and procedural rulings made during that trial by the MDL court. With that on the horizon and with the language of Judge Jolly’s concurrence yesterday, will the MDL court now alter its approach to those same evidentiary and procedural rulings at the third bellwether trial, which starts on October 3? Again, there is reason to do so. The gaze of the Fifth Circuit is now firmly fixed on this MDL and this bellwether trial. The defendants have made sure of it. And it all starts Monday.