Photo of Eric Alexander

In the coming weeks, there are sure to be many articles looking at what Judge Brown Jackson has written and what that might suggest about the future jurisprudence of the United States Supreme Court if she is confirmed.  We will not predict what will happen in confirmation.  We will, however, weigh in on what Judge Brown Jackson—one day she may earn a KBJ moniker as a nod to RBG, but we will resist that for now—has written in our space.  Our methodology was to try to find decisions she has authored, either at the district or circuit level, that address product liability, preemption, personal jurisdiction, or some other issues that pop up frequently in our posts.  We knew there would be one because we were familiar with it outside of the blogosphere and have written on it.  Unless you go much further afield to issues like the scope of discovery under Federal Rule of Civil Procedure 26, specific applications of the Federal Rules of Evidence, or trying to make inferences across different areas of law, there is not much more.  We found three decisions worth discussing here.  (Our thanks to Jamie Lanphear for helping to identify them.)

With more than eight years on the federal bench, that is not many decisions.  Part of that may be that the D.D.C. and D.C. Cir. have dockets heavy on administrative cases and other cases involving the functioning of the federal government and light on product liability cases.  Even the D.C. Superior Court, from which cases might be removed to the D.D.C. probably has a relatively low percentage of product liability cases and the sort of cases that tend to produce decisions we find blogworthy.  Of the five MDLs currently pending in the D.D.C., not one involves product liability; nationally, product liability is the most prevalent type of MDL.  Of course, the D.C. Circuit, where Judge Brown Jackson has been for less than a year, draws its cases from the D.D.C.  Product liability cases are not the only ones that may implicate preemption and the cases in the D.D.C. generally have plenty of preemption or primary jurisdiction issues.  So, maybe there are more relevant decisions out there that might be unearthed with a deeper mixed metaphorical dive.

For each of the prior three Supreme Court nominees, we did a post looking specifically at their history with preemption.  Of those three, only then-Judge Gorsuch had authored a prominent preemption decision involving drugs or devices, Caplinger.  The two preemption decisions we discussed from then-Judge Kavanaugh were not drug or device product liability cases, and neither was the one for then-Judge Barrett.  By contrast, Judge Jackson has written about preemption in the context of a device product liability case.  That case is Kubicki v. Medtronic, Inc., 293 F. Supp. 3d 129 (D.D.C. 2018), the third of the cases we are discussing here.  The other two are Apton v. Volkswagen Group of Am., Inc., 233 F. Supp. 3d 4 (D.D.C. 2017), and In re Air Crash Over the S. Indian Ocean, on March 8, 2014, 352 F. Supp. 3d 19 (D.D.C. 2018).  Rather than focus on whether these three decision were rightly or wrongly decided, we will try to see what we can glean about Judge Jackson as a jurist.

Apton was a somewhat unusual case where a plaintiff lawyer filed a case pro se to try to invalidate his car lease and recover various damages because he did not like the terms of the recall for the car’s airbag.  The defendants removed from D.C. Superior court—yes, D.C. has “state courts” even though it is not a state—on the basis of diversity and federal question jurisdiction.  The plaintiff moved to remand and sought attorney’s fees.  The decision followed.  We note that the decision is long and detailed given the subject matter and that it took a pretty long time to be issued.  Seven months from the filing of a motion to remand until a decision is, we suspect, longer than average outside of the MDL context.  Similar observations can be made of Air Crash and Kubicki.  On substance, the motion to remand turned on two discrete issues that the court identified.  (From these three decisions, it might also be observed that, beyond the background, Judge Jackson does not seem to spend much time on issues not necessary to her decisions.)

The key issue in connection with diversity jurisdiction in Apton was the minimum jurisdictional amount.  While not the main issue in removals of product liability cases, where joinder and misjoinder tend to come up more often, the jurisdictional minimum is always part of the removal of diverse cases, and removal is often an important part of defense strategy.  In Apton, the plaintiff-lawyer represented in his civil action cover sheet in D.C. Superior Court that he was seeking $100,000 in damages and fees, including damages under consumer protection statutes and punitive damages, safely above the $75,000 minimum.  233 F. Supp. 3rd at 8-9.  In an attempt to undo his concession, plaintiff supported his motion to remand with an affidavit claiming he made a mistake with his prior court filing, had about $13,000 in damages at the time, and that the amount in controversy was $25,000.  Id. at 9.  Ultimately, the court credited the affidavit and did not find that defendants had carried their burden to show that more than $75,000 was really at issue, despite the claim for unspecified punitive damages.  Id. at 12-15.  Without judging the merits of the decision, we note that the decision identified the case law on how to treat extraneous evidence in the context of a motion to remand and the law that an assertion of punitive damages did not automatically satisfy the jurisdictional minimum.  It was also fairly systematic in matching up record citations with the cited law in conducting the analysis.  However, there are two issues that arguably should have been addressed that were not:  1) whether the part of the plaintiff’s affidavit about the amount in controversy was a legal conclusion that should have been ignored and 2) whether the civil action cover sheet was a judicial admission that should have estopped plaintiff from changing his tune, particularly since removability is judged as of the moment of removal.  While the court did note that statements from plaintiff in his pleadings and other court filings were not dispositive, that is really an issue of whether the plaintiff can plead around removal.

The analysis of whether the case necessarily required resolution of a federal question was also pretty thorough and included plenty of record and case citations that seemed relevant to the issues.  Id. at 15-19.  The conclusion that there was no federal question jurisdiction turned on the lack of a reference to any federal statute or direct challenge to the decisions of a federal agency in the complaint, and the law that a defense based on federal law (e.g., preemption) will typically not establish federal question jurisdiction.  While this may or may not be the right decision on the record before the court, we note two potential concerns.  First, as many courts have found in dismissing claims based on express preemption with PMA devices, a savvy plaintiff’s omission of basic facts from a complaint (e.g., federal agency actions like a vehicle recall or medical device approval) does not prevent those judicially noticeable facts from being considered in the 12(b)(6) context.  The same would be true for a motion to remand.  Second, the court was quick to look to authority from other district courts without—at least on the face of the decision—first looking to authority from the Supreme Court, D.C. Circuit, or D.D.C.  Do we think any of this means that Judge Jackson is inherently pro-plaintiff or anti-removal?  Nope.

The part of the decision rejecting the plaintiff’s request for attorney’s fees reinforces that conclusion.  The court cited Supreme Court and D.C. Circuit authority that pro se attorneys are generally not eligible for attorney fees under various authority.  Id. at 19.  It went further and concluded that the defendants’ removal was not unreasonable, as required under 28 U.S.C. § 1447(c), as to either of the issues the court decided against defendant.  Id.

Air Crash was decided on forum non conveniens, an issue that comes up less often in product liability litigation since the Supreme Court has tightened up personal jurisdiction over the last several years.  It was, however, a noteworthy decision because it dismissed an entire MDL in a single order.  The dismissed cases could be re-filed in Malaysia, where related litigation was also pending.  Do we think this means Judge Jackson is pro-defendant or against U.S. courts deciding disputes with international implications?  Nope.  It seems more like a “balls and strikes” sort of decision, but it did show some guts.  Judge Jackson had not been on the bench very long when she was assigned this MDL, which related to “one of the greatest aviation mysteries of modern times:  the disappearance of Malaysia Airlines Flight MH370 somewhere in the southern Indian ocean in the early morning hours of March 4, 2014.”  352 F. Supp. 3d at 23.  Without getting too far into the weeds, the MDL included plaintiffs from the U.S. and other countries asserting product liability claims against the manufacturer of the airplane and claims under the Montreal Convention against the airline (quasi-governmental entities) and its insurers.  The on-going litigation in Malaysia was the crux of the forum non conveniens challenge; other grounds for dismissal were raised but not decided.  One of those was a personal jurisdictional challenge by a German insurer—this decision came well after Bauman—which might have provided more direct insights on Judge Jackson’s approach to a recurring issue of importance in drug and device litigation.

Forum non conveniens is less of an issue in drug and device cases, but it is still an issue.  Because the balancing test is well known and its application is often highly fact-intensive, however, it is hard to draw large conclusions from a single application.  The conclusion that “on balance, the claims asserted in the consolidated complaints has a substantial and overriding nexus to Malaysia that outweighs the less substantial connection to the United States” is supported by a long and detailed analysis and seems to cite and apply the right law.  Id. at 24.  It was also affirmed by the D.C. Circuit.  2020 U.S. App. LEXIS 818 (D.C. Cir. Jan. 10, 2020).

While a tendency to provide detailed analyses is good for a Supreme Court nominee—those with fading eyes and attention spans might debate the “long” part—we see other recurring issues.  The first is pace.  The MDL was established in June 2016.  The briefing on motions to dismiss was complete in September 2017.  A hearing took place in December 2017 and a ruling was issued in November 2018.  Not very brisk.  The second, while it did not factor into the decision, is some looseness and lack of depth on product liability law.  In characterizing product liability claims, the decision stated that they “require proof of the causal relationship between a manufacturer’s product and the injury a plaintiff has suffered.”  352 F. Supp. 3d at 33 (emphasis added).  By contrast, the D.C. Circuit case cited with that statement (after a Seventh Circuit cite) has the correct formulation in an included parenthetical:  “plaintiff must demonstrate . . . that the defect proximately caused plaintiff’s injury in that but for the defect, the injury would not have occurred.”  Id. (citation omitted and emphasis added).  Similarly, when describing the plaintiffs’ res ipsa loquitur argument offered against the plane’s manufacturer, the court omitted the requirement under D.C. and hornbook law that the defendant have had sole control over the instrumentality alleged to cause the injury.  Id. at 34.  That would not apply once the plane was sold and subject to operation and servicing by someone other than the manufacturer.  (See here for a discussion of how the doctrine does not fly in device cases.)

This brings us to the longest and most substantive product liability decision we found from Judge Jackson, Kubicki, a case that has made it into some of our survey and scorecard posts.  As we said above, we know this case outside of the Blog, so we will not comment on every aspect of the decision.  The prior observations about length and pace certainly apply.  The decision takes up more than 60 pages in F. Supp. 3d and it took 15 months from the hearing on the motion for summary judgment to get the decision.  When Judge Jackson was assigned the case soon after taking the bench, there had already been a decision on a motion to dismiss on TwIqbal and preemption.  Kubicki v. Medtronic, Inc., No. 12-cv-734, 2013 WL 1739580 (D.D.C. March 21, 2013).  Kubicki involved significant injuries sustained by an insulin-dependent diabetic college student that were allegedly caused by defects in insulin pump and infusion set kit devices.  Plaintiff asserted a number of product liability claims and, after fact discovery, defendants offered a number of arguments in support of summary judgment.  We will focus on two:  preemption and proximate cause for failure to warn.  The ones we are not addressing, including medical causation, statute of limitations, and express warranty, certainly matter in drug and device cases too.

On preemption, the insulin pump was a PMA-approved device and the infusion set was a 510(k)-cleared device with a subsequent recall history.  Over time (and after a second recall), plaintiff shifted from a theory of the case focused on the pump to a theory that pointed the finger at both devices, more the infusion set on liability and more the pump on causation.  As might be expected from the other decisions, the treatment of preemption begins with a lengthy examination of the applicable law, including the differences between express preemption for PMA devices and implied preemption for PMA or 510(k) devices.  293 F. Supp. 3d at 167-73.  That discussion did not, for instance, tout a non-existent presumption against preemption or suggest that Buckman only limited claims titled as “fraud-on-the-FDA,” mistakes we have seen from other judges.  The subsequent analysis proceeded with logical buckets, starting with a claim-by-claim look at express preemption for the pump.  Even though the prior judge’s ruling on the motion to dismiss had allowed purportedly parallel claims to get past the pleading stage, Judge Jackson was much tighter on summary judgment:  “Plaintiffs have either failed to identify a specific FDA requirement upon which their allegedly parallel state law claims can be based, or failed to establish that any genuinely equivalent parallel state law claim exists.”  Id. at 174.  Several of the common arguments for he existence of parallel claims were rejected, including citation to purported violations of Current Good Manufacturing Practices, labeling, and MDR reporting regulations as a basis for various state law claims.  See id. at 180-85.  The manufacturing defect claim, based on deviating from the conditions of approval, was not expressly preempted, which is fairly common; the court did allow this issue to be revisited after expert discovery.  Id. at 173.

After this exploration of express preemption, the implied preemption analysis as to the infusion set was shorter and more lenient.  In connection with finding that each of the asserted claims was not preempted, the scope of D.C. common law was arguably expanded to avoid the conclusion that plaintiff was seeking to recover based on allegedly violations of federal law or to usurp FDA’s role as sole enforcer of the FDCA, both triggers under Buckman.  In doing so, there does not appear to be any consideration of the concept of Erie restraint.  Id. at 185-88.  The arguable looseness of this part of the decision stands in contrast with other parts, regardless of whether you agree with the conclusions.

On the proximate cause for failure to warn issue, the starting point was that the preemption rulings meant the warnings claim had to relate solely to the infusion set.  The prescribing physician had testified that he would not have treated the plaintiff any differently in response to proposed additional warnings as to either the pump or the infusion set based on information available at the time of the prescription.  This was particularly so as to the infusion set, because he had not read the labeling.  That is usually grounds for summary judgment.  Yet, the court found a genuine issue of material fact as to “potential liability for the allegedly faulty labels and instructions that purportedly failed to warn [plaintiff], her parents, and [the prescriber] of the risks pertaining to improper use of the MMT-396 Infusion Set.”  Id. at 189.  That was based, in turn, on two somewhat unusual conclusions.  First, the court concluded that the learned intermediary doctrine focuses on the prescribing physician’s decision-making with a prescription medical product only when the adequacy of the warnings has been established, something plaintiff contested.  Id.  This is a decided minority view of how the learned intermediary doctrine works.  Second, the court found it appropriate to look to the “educators” or “trainers” who interacted with patients for whom the physician had prescribed an insulin pump with accompanying infusion set.  Id. at 189-90.  Again, this is not consistent with the majority view of how the learned intermediary doctrine works, where the focus is on the individual who has the legal authority to prescribe the prescription medical product.  An arguably more fundamental problem with the analysis here, however, is that court looked to what the movant had “successfully established” and what a “reasonable jury might well conclude.”  It did not mention the plaintiff’s burden at all.  In the context of summary judgment, after the defendants’ motion teed up these issues, plaintiff was required to come forward with admissible evidence to show she could carry her burden as to each element of the cause of action.  The court did not analyze it that way.  For instance, there was no discussion of whether plaintiff could establish that the label for the infusion kit was inadequate at the time of prescription or whether plaintiff could establish that the trainers would have done something different with plaintiff had there been different labeling.  Regardless of what the court should have concluded had it looked at the evidence in this way, we can say that a proper analysis under Fed. R. Civ. P. 56 and controlling law should have address whether plaintiff carried her burden with record evidence, and this is the most troubling issue we saw as it relates to these three decisions.

So, what do we think the tea leaves from these cases show?  Like any reading of tea leaves, entrails, or the flight pattern of birds to predict the future, it probably depends on the reader’s preconceived notions and biases.  One thing we can say is that Judge Jackson does not seem to have much of a background with product liability and some of the other issues that feature in the Blog.  That is not surprising given where she has been a judge and what she did before becoming a judge.  Of course, the Supreme Court does not have a docket heavy in product liability cases either, and several of its current members had no prior judicial experience, less prior judicial experience than Judge Brown Jackson, and/or also sat on the same D.C. Circuit.