If hard cases make bad law, big cases make really bad law. No cases are bigger than product liability multidistrict litigations. Some have populations dwarfing the towns where many of you were raised. Perhaps it is the high stakes involved, or perhaps it is the judicial obsession with settling many thousands of cases ASAP, but MDL rulings are as likely to be distortions as applications of the law. Think of the the pelvic mesh rulings preventing juries from learning the basic, important, and undeniable fact that the FDA cleared the products in question. Then again, at least those are rulings you can read and to which you can react. In too many MDLs, the judges, either paralyzed by size of the project, or persuaded that inaction is most likely to prompt settlement (not true, by the way), decide not to decide anything important. If one could look up the job description of an Article III judge, then one would probably not find an entry for “not deciding stuff.” And yet.
But there is a sea change after the MDL courts remand cases. Judges overseeing remand cases manage trial-set cases, not inventories. They actually start deciding motions. Sometimes they get some things right. Cotton v. Ethicon, Inc., 2021 WL 736211 (N.D. Indiana Feb. 25, 2021), is one of those pelvic mesh remand cases. It is a mixed bag. There is a not very interesting denial of summary judgment on the failure to warn claim. The plaintiff did not depose the treating physician, which normally is required for the plaintiff to cobble together warning causation. But the court held that the plaintiff could create a factual dispute via an affidavit from the treating physician. Ho hum.
At the same time, the court granted the defendant’s motion for summary judgment on the negligent misrepresentation and unjust enrichment claims. As a preface to those dismissals, the Cotton court does a nice job of setting forth the merger of product liability claims under the Indiana Product Liability Act, which “codified the entire field of product liability law in Indiana.” The Cotton court’s interpretations of Indiana law might serve you well the next time you are defending a client in the Hoosier State.
First, Indiana law confines negligent misrepresentation to “business transactions.” The Cotton court rejected the plaintiff’s argument for expanding negligent misrepresentation to personal injury cases. But the plaintiffs could not cite a single Indiana product liability case blessing a negligent misrepresentation. The Cotton court seized hold of our beloved Erie conservatism as one reason for that rejection. Quoting a 2014 decision from the same court, the Cotton court made clear that “it is not this Court’s role to expand upon the availability of tort remedies that Indiana has made clear are to be limited in scope.”
Second, the Cotton court held that the plaintiff could not satisfy the elements of unjust enrichment. The plaintiffs were seeking restitution, but they were unable to demonstrate a contractual relationship with the manufacturer. Moreover, the plaintiffs “certainly expected a working product, but likely did not expect any payment following the implantation of the products.” This was simply not a quantum merit case. As with the negligent misrepresentation ruling, the dismissal of the unjust enrichment claim effectively removes this claim from personal injury litigation in Indiana.
The Cotton court was confronted with whether the claims in the case before it would make it to trial. It laid those claims alongside Indiana law to see if they fit the bill. That is a form of case management far more honorable and effective than the stilted gamesmanship one might be unlucky enough to encounter in MDLs.