“Location, location, location” isn’t a mantra only for real estate agents. Location also matters to lawyers. In Axline v. 3M Co., 2021 WL 3411822 (8th Cir. Aug. 5, 2021), whether the Bair Hugger product liability case could go forward turned on the choice of law between Minnesota and Ohio. The Eighth Circuit affirmed the district court’s decision that Ohio law applied, that the complaint should be dismissed, and that the plaintiff would not be afforded leave to amend her complaint.

The plaintiff alleged that she suffered injuries as a result of the use of the Bair Hugger device during her hip surgery, which took place in Ohio. Her complaint included 14 causes of action, including negligence and design defect under Minnesota law. She chose Minnesota law because that is where the defendant had its principal place of business. But if Ohio law, rather than Minnesota law, controlled, her complaint would be dismissed because the Ohio Products Liability Act (OPLA) had abrogated all common law product liability actions.

Welcome to a classic conflict of laws issue. Under modern conflict of laws analysis, the first question is whether there really is a conflict. After all, if there is no conflict, why burn calories going through a multi-factor analysis? Here there was a true conflict. You might even call it an existential conflict. The claims would survive under Minnesota law, but would get axed under Ohio law. So we must proceed to the next step. (The decision does not render self-evident why the plaintiff would prefer Minnesota law, but we do harbor a deep suspicion that the OPLA would not be nearly as receptive to the plaintiff’s claims.)

Here is where things in the Axline case got a bit tricky. Once a true conflict of laws is established, one must consult the choice of law rules for the forum state. The Axline case was filed in federal court in Minnesota. The plaintiff looked to the Minnesota choice of law rules and argued that Minnesota rules would favor application of Minnesota substantive law. (Not surprisingly, a state’s choice of law rules often favor application of its own laws. Plus, judges usually feel more comfortable working with the laws in their own states.) But the plaintiff got all of that wrong. The case was filed in Minnesota federal court because that was the home of the Bair Hugger Multidistrict Litigation (MDL). The proper venue for the case would have ordinarily been the Northern District of Ohio. The plaintiff would have filed the case there, then it would have been transferred to the MDL court in Minnesota. For the sake of efficiency, and as is quite typical in MDLs, the Bair Hugger MDL court permitted direct filings. (Because direct filings potentially facilitate the mischief at work in this case, plus affect personal jurisdiction defenses, we wonder whether defendants should agree to them.) That is how Axline was filed in Minnesota. But the true forum was N.D. Ohio. Got it?

That Ohio forum meant that Ohio choice of law governed. As with most choice of law rules, the place of injury presumptively governs unless another jurisdiction has a “more significant relationship” to the lawsuit. And then we are off to the races, galloping through something like 11 factors. Those factors include some that are straightforward (e.g., place of the conduct causing the injury, domicile of the parties) and some that are fuzzy (e.g., needs of the interstate system, state policies, protection of justified expectations, predictability). Most of those factors ended up being neutral or negligible. In any event, those other factors did not end up rebutting the presumption that the Ohio place of injury determined the governing law. Ohio won out over Minnesota (just like in Friday’s football game), and the plaintiff’s complaint was dismissed.

But wait, you ask, what’s the big deal? Can’t the plaintiff simply amend her complaint to conform to the OPLA? Well, no. The plaintiff stepped on a judicial rake a couple of times, and stumbled her way into a dismissal without leave to amend. First, the plaintiff filed an “informal request” for leave to amend that failed to comply with a Local Rule requiring a party seeking leave to amend to provide a copy of the proposed amended pleading along with a redlined version showing changes. That didn’t work. Subsequently, the plaintiff formally moved for leave to amend her complaint to include claims under the OPLA, but again violated the Local Rule, this time by failing to include a clean copy of the amended complaint. The magistrate judge apparently had enough of the plaintiff’s noncompliance and recommended denial of the amendment. The district court agreed. By the time the issue got to the Eighth Circuit, the standard of review was abuse of discretion, and the Eighth Circuit concluded that the district court had acted well within its fair discretion. The district court had explicitly informed the plaintiff of the Local Rule requirements. Plus, lawyers are charged with knowing the Local Rules.

By affirming the district court’s decisions below, the Eighth Circuit ended the Axline case. The Eighth Circuit also offered an instructive lesson on MDL practice, on the importance of knowing which laws and rules apply, and on how crucial it is to follow those laws and rules.

Yesterday, we took a swipe at an Eighth Circuit Bair Hugger decision. But we are okay with this one.