A talisman is something thought to protect whoever has it from evil or harm. In the old days a talisman might be something like garlic to ward off vampires or the Seal of Solomon to keep away various evil spirits. Nowadays, there aren’t so many – although it seems there are some people out there who appear to view Robert Mueller as something of a talisman.
How about preemption?
We noticed something recently in the course of making sure that our preemption scorecards for PMA device and generic drug preemption are current.
We don’t see many preemption cases that need to be included in either scorecard coming out of multi-district litigation. For example, in the PMA preemption scorecard, there are exactly five cases with “In re” in their title. The last one was In re Medtronic, Inc., Sprint Fidelis Leads Products Liability Litigation, 623 F.3d 1200 (8th Cir. 2010), which involved a pre-Riegel MDL essentially getting wiped out by a single preemption motion. Since Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), as far as we can tell from following the case law, not a single new MDL has been created involving a pre-market approved device to which extensive Riegel preemption would apply. Sure, there has been fairly extensive post-Riegel litigation involving some PMA devices – Infuse and Essure come to mind – but no MDL where bad cases can go to hide until a single MDL judge produces enough bizarrely pro-plaintiff rulings and/or consolidated bellwether show trials to bludgeon the defendant into settling.
The same appears to be true in the generic drug area, which also enjoys broad preemption (if not for as long a time as PMA devices). We find more “In re” captioned cases in our generic preemption scorecard, but for the most part they, as well, look like holdover MDLs involving drugs that were subject to litigation before the preemption hammer came down in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011). We see some Accutane, Darvocet, Yasmin/Yaz, and Fosamax cases, all of which appear to have been in litigation – Sprint Fidelis style – since before Mensing was decided. We also see various “In re Reglan” citations, but they are from state court. In federal court, generic Reglan (metoclopramide) cases seem to have been brought on the same individual, if rather common, basis as Infuse or Essure in the device area. No federal MDL.
The only possible exception to this state of affairs is In re Testosterone Replacement Therapy Products Liability Litigation, 142 F. Supp.3d 747 (N.D. Ill. 2015), which was created after Mensing. But we don’t really see TRT as an exception, since reading the decision suggests that the litigation really targets branded manufacturers. The generic plaintiffs who were dismissed were more or less odds and sods generated by the usual excessive solicitation followed by the even more usual inadequate vetting of actions by the other side in mass tort situations. In any event, the generic Testosterone plaintiffs were wiped out by preemption and that was that.
So, in addition to (or perhaps because of) its other virtues, a strong preemption defense appears to be a talisman that wards off the evil of MDLs/mass torts. Most defendants have had their fill of MDLS, and most plaintiffs don’t seem to be seeking MDLs in cases involving such products – and with good reason. As in the aforementioned Sprint Fidelis and Testosterone decisions, a single preemption ruling wiped out all similarly situated plaintiffs in the entire MDL. Plaintiffs do not want that efficiency like that. If every Infuse, Essure, or Reglan case were in the same court, then one preemption ruling by a judge inclined to follow Supreme Court precedents means the litigation is over. Not much chance for a return on all those solicitation costs. Without MDL coordination, plaintiffs can still try to find that rogue judge here or there willing to find an off-label-promotion or duty-to-update exception to preemption in this or that case.