As we publish this post, lawyers in the Pinnacle Hip Implant MDL are gathering in the Bob Casey Courthouse in Houston or in coffee shops, breakfast cafés or law offices nearby awaiting the argument to come.  At 10:00 a.m., the arguing starts.  The Fifth Circuit will officially begin to consider whether to issue a writ of mandamus telling the Pinnacle Hip Implant MDL Court in Dallas that it cannot exercise personal jurisdiction over the upcoming September bellwether trial involving eight New York plaintiffs. The Fifth Circuit will tackle the substance of the appeal—did defendants waive their personal jurisdiction defense as to those eight cases and, in fact, as to all cases in the MDL when they gave a waiver in connection with the first two bellwether trials? Maybe more important, the Fifth Circuit will tackle procedure—are these the type of rare circumstances that require it to issues a writ of mandamus?

We first posted on this petition to the Fifth Circuit on August 8.  Defendants’ petition argued—fairly convincingly—that the context of their waivers, and the language of the waivers themselves, made clear that they applied only to the cases selected for the previous bellwether trials that were upcoming at the time that the waivers were made, and not to all MDL cases.  (Here is a copy of the petition.)  The defendants’ petition challenged an order issued by the MDL trial holding that the waivers applied more broadly, encompassing all future MDL cases, even (seemingly) those that had not even been filed yet.  (Here is the trial court’s opinion.)

Since our first post, the plaintiffs’ filed an opposition brief, and the defendants have since filed a reply brief.

Plaintiffs’ response brief is confusing at times. It argues (at 19) that MDL courts can exercise the personal jurisdiction necessary to conduct bellwether trials with the consent of the parties. Well, yes. With the consent of the parties. But the existence of consent is the very issue being considered by the Fifth Circuit. Plaintiffs’ response also argues (at 18) that an MDL court’s “direct-file order”—an order that allows plaintiffs to file complaints directly in the MDL court even if the underlying claims have no connection to the state in which the MDL court sits—allows it to exercise personal jurisdiction over those directly-filed cases and to conduct trials. No it doesn’t. Courts can’t create personal jurisdiction that otherwise did not exist simply by issuing an administrative filing order. On “waiver,” at one point plaintiffs’ opposition states (at 5) that defendants had previously explained that their waiver for the second bellwether trial was “in order to allow the court to select the next round of bellwether cases.” Plaintiffs then just let that phrase lie there out in the open, essentially making defendants’ argument for them.

Defendant’s reply brief misses none of this, addressing all these seeming missteps. It also turns some of plaintiffs’ arguments in defendants’ favor. For instance, plaintiffs argue that only two cases address the states’ contacts that should be considered in a direct-file case, claiming that both cases were decided wrongly. Defendants highlight (at 1), however, that this is the precise type of lack of guidance that requires the Fifth Circuit to weigh in. Defendants’ reply brief (at 2) explains that such guidance would assist not only in the upcoming Pinnacle Hip Implant bellwether trials, but also in future Pinnacle bellwether trials and other future MDL proceedings in the Fifth Circuit, as well as dispose of a current Pinnacle appeal. Most important, defendants’ reply brief highlights (at 6) the strict standard for finding a waiver of personal jurisdiction: “a clear and unambiguous showing of a deliberate relinquishment of a known right.” Armstrong v. LaSalle Bank Nat. Assoc., 552 F.3d 613, 615 (7th Cir. 2009). Under this standard, it’s hard to see how the waivers by defendants could ever be reasonably interpreted to apply broadly to all MDL cases.

The Fifth Circuit will test and probe all of these issues and arguments later this morning. It will likely be a fascinating back-and-forth. Now, as with any writ of mandamus, this is a long shot. But personal jurisdiction is a hot button issue right now. And the Fifth Circuit’s decision could affect many cases, as this MDL trial court has a penchant for arranging incredibly large multi-plaintiff bellwether trials. Regardless, one thing that we are reasonably sure of is that the Fifth Circuit will rule quickly. The next bellwether trial is only a couple of weeks away. And so we expect to be posting on the Fifth Circuit’s decision soon.