It’s hard to believe, but fully five months after COVID-19 was officially declared to be a “pandemic,” it’s still extraordinarily difficult to get oneself tested – particularly if one is not already sick or exposed. Maine has been one of the most successful states in reducing the virus’ spread, with the third lowest rate of infection in the country. One of the requirements Maine has imposed is that anyone visiting (except from a few other low-incidence states) must quarantine for 14 days. “Adults who have a negative COVID-19 PCR test collected no more than 72 hours before arriving in Maine” are exempt. Just try to find someplace to schedule such a test.
Bexis, whose wife has a shore cottage in Maine, tried for the last couple of weeks to arrange a COVID test that would comply with the Maine requirements. Can’t be done in Pennsylvania or South Jersey, because pre-scheduled well-adult testing that would meet Maine’s 72-hour limit is not publicly available. The feds? Don’t make us laugh. Despite occasional claims that “anybody that needs a test can get one,” that just ain’t so. The federal government has abandoned any pretense of providing the kind of immediately available testing that is found in parts of Europe. So Bexis’ annual Maine trip is off.
Speaking of travel issues, what happens when a case travels? MDL transfer orders collect hundreds, even thousands, of cases from all over the country and send them to one particular court. The MDL court then issues numerous substantive orders – some of great import − that affect all of these cases. Not all MDL cases settle; sometimes remanded cases themselves number in the thousands. So how does one go about challenging the validity of an MDL ruling on appeal after the case has been remanded to a district court in a different circuit?
That’s what the Eleventh Circuit recently had to determine in Corley v. Long-Lewis, Inc., ___ F.3d ___, 2020 WL 4006602 (11th Cir. July 16, 2020). Corley had been in the Asbestos MDL in the Eastern District of Pennsylvania, which as most readers undoubtedly know, is in the Third Circuit. While in the MDL, a number of defendants (referred to as “Navy suppliers”) obtained summary judgment on the statute of limitations. Id. at *1. Belatedly, plaintiff attempted to assert maritime law, which had a longer statute of limitations, but the MDL court held that the “motion for reconsideration was far too late.” Id.
Eventually, the suit was remanded to the Northern District of Alabama, which is in the Eleventh Circuit (there is also no seacoast in northern Alabama, but that’s where plaintiff filed). After further motions, settlements, and bankruptcies, plaintiffs voluntarily dismissed the remaining defendants without prejudice and “filed this appeal, which . . . challenges the denial of their motion to reconsider the summary judgment in favor of the Navy suppliers.” Id. at *2. The resulting appeal presented an extremely interesting procedural morass – the subject of our post today.
First up – appellate jurisdiction. Can a voluntary dismissal create the necessary finality to support a federal appeal? Ultimately the Eleventh Circuit answered that question “yes,” but not before remarking that “we do not write on a blank slate,” rather “the canvas looks like one that Jackson Pollock got to first.” Corley, 2020 WL 4006602, at *3. Corley was hardly the first time a plaintiff had sought to create appellate finality through voluntary dismissal of what had become unwanted claims and defendants, and prior cases were all over the place. After spending much ink considering prior precedent, Corley resolved the issue in favor of appealability:
Because we cannot harmonize our decisions, the earliest-precedent [governs] rule applies. And under that rule . . . we hold that an order granting a motion to voluntarily dismiss the remainder of a complaint under Rule 41(a)(2) qualifies as a final judgment for purposes of appeal.
Id. at *5. Note: the rule that Corley cites – that in the case of intra-circuit conflict among published panel decisions, the earlier decision is controlling – itself appears to be the strong majority rule (using the West keynumber in Corley (106k90(2)) and quickly searching for “earli!” or “oldest” shows the earlier-in-time rule expressly adopted by every circuit court except the First, Second, and Ninth).
Second up – territorial jurisdiction. Statutorily, “appeals from reviewable decisions of the district . . . courts shall be taken . . . to the court of appeals for the circuit embracing the district.” 28 U.S.C. §1294. How, if at all, is this statutory command affected by rulings made by an out-of-circuit MDL court prior to remand? The defendants argued that the substantive order at issue was made MDL court in the Eastern District of Pennsylvania, “which would deprive us of jurisdiction.” Corley, 2020 WL 4006602, at *6. That’s an interesting question that could arise in any MDL post-remand case – and there are hundreds of them right now, just those involving mesh.
Well, there is “a circuit split over the application of §1294 to interlocutory orders that precede an inter-circuit transfer.” Id. According to Corley (we did not engage in independent research), “[m]ost circuits . . . have concluded that they can review an out-of-circuit interlocutory decision so long as they have jurisdiction over the district court that issued the [ultimate] appealable decision.” Id. (citing Second, Third, Fifth, Sixth, Seventh, and DC precedent). Only one circuit, the Tenth, has disclaimed jurisdiction to review interlocutory orders by out-of-circuit district courts, even though the ultimate final appealable order originated in an in-circuit court. Id. Corley “agree[d] with the majority interpretation”:
[T]he phrase “reviewable decisions” in §1294 refers to appealable decisions. Congress has not given us the power to review interlocutory orders at will. Outside of narrow circumstances not relevant here, we can review those orders only when they merge into a final judgment of the district court. So even when we consider the merits of an interlocutory order, we still “review” the final decision into which the earlier order merged.
Id. (citations and quotation marks omitted). Thus, “§1294 concerns ‘appeals from reviewable decisions,’” which presumes that the “reviewable decision[ ]” is an appealable decision. Id. (citation and quotation marks omitted). So Corley held that the court of appeals responsible for the transferor court has jurisdiction to review any applicable interlocutory order issued by an MDL court during the period that the case in question was part of that MDL.
Finally, Corley held that the plaintiffs had standing, notwithstanding their filing a voluntary motion to dismiss, because they remained “aggrieved” by the underlying MDL order to which they had “never consented.” 2020 WL 4006602, at *8.
Even though [plaintiffs] are not adverse to the order of voluntary dismissal, . . . they are adverse to the order that denied their motion to reconsider the summary judgment in favor of the Navy suppliers. And the latter order is just as much a part of the final judgment as the voluntary-dismissal order. So, notwithstanding their voluntary dismissal, [plaintiffs] are adverse to part of the final judgment, which is enough to establish appellate standing.
Id. (citations omitted).
These procedural issues should be of interest to defense counsel, as they arise in all kinds of tort cases. In particular, drug/medical device mass-tort defense counsel should pay attention to Corley’s second holding. Under the “majority rule” that Corley followed, it is more than theoretically possible for a single interlocutory MDL order – jurisdictional, Daubert, preemption, or anything else − affecting all cases in the MDL, to be reviewed several times by several different courts of appeals. What the MDL court did might even be contrary to the laws of some circuits. Further, most of these “interlocutory” decisions would probably be defense losses in the MDL context, but not all. When multiple cases are remanded from an MDL, defense counsel will need to consider them strategically, to determine in which circuit an appeal of an adverse MDL order on – say, preemption – would stand the best chance of success.