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Abuse of substantive law as a weapon to force settlement occurs so frequently in multidistrict litigation (“MDL”), that we’ve given it a name – “the MDL treatment.”  The linchpin of the MDL treatment is that plaintiffs are allowed to take way more liberties with state law than the Erie doctrine allows.  Readers can recall from our prior posts that both the Supreme Court and Third Circuit (to take the relevant example), view expansive federal court “predictions” of state law – and state tort law in particular – usurp the prerogatives of the states and are an abuse of power. 

The Principles

Here are just a few relevant quotes:

United States Supreme Court:  Diversity jurisdiction “does not carry with it generation of rules of substantive law.”  Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 426 (1996).  “[A] federal court is not free to apply a different rule however desirable it may believe it to be, and even though it may think that the state Supreme Court may establish a different rule in some future litigation.”  Hicks v. Feiock, 485 U.S. 624, 630 n.3 (1988).  Federal courts are “not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.”  Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4 (1975).  “The proper function” of a federal court “is to ascertain what the state law is, not what it ought to be.”  Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 497 (1941).

Third Circuit Court of Appeals:  “[U]nder Erie . . . we may not ‘act as a judicial pioneer’ in a diversity case.”  Crystallex International Corp. v. Petroleos De Venezuela, S.A., 879 F.3d 79, 84 (3d Cir. 2018) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 254 (3d Cir. 2010)).  “We must be mindful that our duty is to apply state law irrespective of what we may regard as its merits; we may not impose our own view of what state law should be, nor expand state law in ways not foreshadowed by state precedent.”  Spence v. ESAB Group, Inc., 623 F.3d 212, 217 (3d Cir. 2010) (citations and quotation marks omitted).  “[W]e have exercised restraint” and “opt for the interpretation that restricts liability, rather than expands it, until the Supreme Court of [the affected state] decides differently.”  Travelers Indemnity Co. v. Dammann & Co., 594 F.3d 238, 253 (3d Cir. 2010).  “[E]ven if we were torn between two competing yet sensible interpretations of [state] law . . ., we should opt for the interpretation that restricts liability, rather than expands it.”  Werwinski v. Ford Motor Co., 286 F.3d 661, 680 (3d Cir. 2002).  “[I]t is not the role of a federal court to expand state law in ways not foreshadowed by state precedent.”  City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 421 (3d Cir. 2002).  Federal courts sitting in diversity cannot “act as … judicial pioneer[s]” by deciding “whether and to what extent they will expand state common law.”  Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, 541-42 (3d Cir. 2001).  “[A] federal court in a diversity case should be reluctant to expand state common law.”  Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 92 n.7 (3d Cir. 2000).  “[F]ederal courts may not engage in judicial activism.”  Leo v. Kerr-McGee Chemical Corp., 37 F.3d 96, 101 (3d Cir. 1994).  “A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court, but which have not commended themselves to the State in which the federal court sits.”  City of Philadelphia v. Lead Industries Ass’n, 994 F.2d 112, 123 (3d Cir. 1993).

The Opinions (If That’s What They Are)

The relatively recently created Philips Recalled CPAP MDL produced something we don’t recall seeing before, a mere “special master” – not even a magistrate judge – was tasked with writing what amounts to judicial opinion-like recommendations on issues of substantive law.  With respect to the principle of Erie conservatism in predicting state law, the two CPAP “opinions” we’re discussing today are like Dr. Jekyll and Mr. Hyde.

Taking the good doctor first, In re Philips Recalled CPAP, Bi-Level Pap, & Mechanical Ventilator Products Litigation, 2023 WL 7019667 (Sp. Mstr. W.D. Pa. Sept. 28, 2023) (“CPAP I”), addresses primarily medical monitoring.  Before doing so, CPAP I expressly acknowledged the doctrine of Erie conservatism as argued by the defendants:

[Defendant’s] argument is compelling.  “A federal court in a diversity case is not free to engraft onto those state rules exceptions or modifications which may commend themselves to the federal court.” Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4 (1975) (per curiam).  As explained in City of Philadelphia v. Lead Industries Ass’n, Inc., 994 F.2d 112, 123 (3d Cir. 1993):

A federal court may act as a judicial pioneer when interpreting the United States Constitution and federal law.  In a diversity case, however, federal courts may not engage in judicial activism.  Federalism concerns require that we permit state courts to decide whether and to what extent they will expand state common law.  Our role is to apply the current law of the appropriate jurisdiction, and leave it undisturbed. . . .  Absent some authoritative signal from the legislature or the state courts, we see no basis for even considering the pros and cons of innovative theories.  We must apply the law of the forum as we infer it presently to be, not as it might come to be.

2023 WL 7019667, at *3 (internal citations and quotation marks omitted).

Thus, with minor exceptions – in both directions – the result on state-law medical monitoring issues was not that far from the conclusions we’ve drawn in our 50-state medical monitoring survey.  Right off the bat, the defendants conceded no-injury medical monitoring in eleven jurisdictions (California, District of Columbia, Florida, Maryland, Missouri, Nevada, Pennsylvania, Utah, Vermont, West Virginia, and Massachusetts).  Id. at *2 n.3.  Of those, the only one we would dispute is Massachusetts, with its quirky halfway “sub-cellular damage” approach to this issue.  See id. at *4-5.  Another ten jurisdictions were not considered because “no plaintiff reside[d] there.  Id. at 1 n.2 (Alabama, Alaska, Kentucky, Louisiana, Michigan, Mississippi, North Dakota, South Dakota, Wisconsin, and Wyoming).  Several of these states have controlling precedent rejecting no-injury medical monitoring; none have adopted that theory.

CPAP I then rejected the plaintiffs’ arguments that claimed to find some endorsement of no-injury medical monitoring in Restatement (Second) of Torts §7 (1965), id. at *2, “because Plaintiffs have not contested . . . that the highest courts in 31 jurisdictions have not recognized a negligence-based claim for medical monitoring absent physical injury.”  Id. at *3.  Thus, CPAP I recommended that no-injury medical monitoring claims be dismissed under the state laws of Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawai’i, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Puerto Rico, Rhode Island, South Carolina, Texas, Virginia, and Washington.  Id.  That’s s good list, seeing as how it includes a few states (Colorado, New Jersey, Ohio) that we thought, based on our analysis of the weight of lower court opinions, fell on the “yes” side of being likely to allow no-injury medical monitoring.  It properly dismissed no-injury medical monitoring claims in several states (Hawai’i, Idaho, Indiana, Kansas, Montana, New Mexico) that we think are unclear.

Anyway, that’s the high-water mark of CPAP I.  Having just applied the Erie rule against federal courts predicting expansion of state law in diversity cases rather forcefully, CPAP I then morphed into Mr. Hyde, and simply ignored that same standard later in the same “opinion.”  Several states have product liability statutes.  CPAP I states that seven states’ statutes (Connecticut, Indiana, Kansas, New Jersey, Ohio, Tennessee, and Washington) all permit recovery notwithstanding a plaintiff’s lack of present detectable injury.  2023 WL 7019667, at *11-13.  These rulings are, to be charitable, novel.  As to New Jersey, it is just plain wrong – flying in the face of New Jersey Supreme Court authority:

Here, it is not disputed that plaintiffs do not allege a personal physical injury.  Thus, we conclude that because plaintiffs cannot satisfy the definition of harm to state a product liability claim under the [product liability statute], plaintiffs’ claim for medical monitoring damages must fail. . . .   Plaintiffs’ effort to expand the definition of harm to include medical monitoring is best directed to the Legislature.

Sinclair v. Merck & Co., 948 A.2d 587, 595 (N.J. 2008).  No New Jersey case, certainly none cited in CPAP I, has held that undetectable “physiological changes and subcellular harm” meets the Sinclair standard – and Sinclair specifically stated than any expansion of the statute is the province of the legislature, not the courts – and, as shown above, that goes double for any federal court wielding only diversity jurisdiction.

The same is true for each of the other states with product liability statutes − contrary to the same opinion’s prior refusal to credit anything short of state high court precedent in addressing medical monitoring under (we suppose) the common law − not a single state high court decision is cited in support of any of these novel rulings that such statutes contemplate no-injury medical monitoring.  Indeed, the only affirmative case for the rulings is the same Valsartan decision that we recently critiqued on medical monitoring for many of the same Erie ignoring reasons.  We’re sorry, but a conclusion that existing state law merely “do[es] not clearly address,” an issue, CPAP I, 2023 WL 7019667, at *11, does not support creating novel causes of action in a federal diversity action.

While CPAP I was Erie-schizophrenic, In re Philips Recalled CPAP, Bi-Level Pap, & Mechanical Ventilator Products Litigation, 2023 WL 7019287 (Sp. Mstr. W.D. Pa. Sept. 28, 2023) (“CPAP II”), is entirely Mr. Hyde.  On a host of issues, CPAP II makes a recommendations about state law – but without any basis in existing state law.  CPAP II dealt with motions to dismiss the so-called “Amended Master Long Form Complaint for Personal Injuries,” a typically overpleaded MDL monstrosity containing no fewer than “twenty counts.”  2023 WL 7019287, at *3.

First, CPAP II made a mockery of the Federal Rules of Civil Procedure.  Undisputedly, the complaint at issue “allege[d] no specific facts about any specific plaintiffs or specific injuries.”  Id. at *4 (emphasis original).  That’s what the defendant claimed, and neither the opinion nor the special master (somehow delegated judicial power to make legal rulings) disputed it.  But Supreme Court precedent is clear, “pleadings that . . . are no more than conclusions, are not entitled to the assumption of truth.  While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”  Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).  Thus, “’[i]n deciding a Rule 12(b)(6) motion, a court . . . consider[s] only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant’s claims are based upon these documents.’”  Hartig Drug Co. v. Senju Pharmaceutical Co., 836 F.3d 261, 268 (3d Cir. 2016) (quoting Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010)).  Conversely, in ruling on a motion to dismiss, a court “may not consider matters extraneous to the pleadings.”  In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997).

To deny the defendant’s motion to dismiss, however, CPAP II purported to rely on unidentified “facts” from non-pleadings might in some cases not have even been filed yet:

An individual Plaintiff must complete and submit a Fact Sheet within 45 days of the filing of any Short Form Complaint.  The Plaintiff Fact Sheets provide the kind of detail that [defendant] contends is missing from the Short Form Complaint.  Importantly, [defendant] can challenge the sufficiency of a Plaintiff’s Fact Sheet and can even seek dismissal with prejudice for a deficient fact sheet.  Thus, the Fact Sheets serve the purpose of providing the information [defendant] contends is missing from the Master and Short Form Complaints.

*          *          *          *

The Fact Sheets are, in effect, a hybrid pleading.  They must be filed if an individual wants to proceed with a personal injury action, and their sufficiency is subject to a summary challenge by [defendant]. The information which [defendant] alleges is absent from the pleadings is apparent in the already-existing fact sheets.

2023 WL 7019287, at *4,  (citing no precedent).  Words fail us.  CPAP II effectively read Rule 12 out of existence.  Neither Rule 7 nor Rule 12 recognize anything called “hybrid” pleadings.  Indeed, Rule 7(a) lists all “pleadings,” specifically states that “[n]o other pleading shall be allowed,” and “fact sheets” aren’t on that list.

Discovery, such as “fact sheets,” whether or not actually taken, simply has no bearing on a Rule 12 pleadings-based motion to dismiss.  The Rule says so; the Supreme Court says so; the Third Circuit says so.  CPAP II thus confirms our longstanding complaint that MDLs have degenerated into an ad hoc, rules-ignoring, free-for-all.  Bexis was already planning a comment to the Rules Advisory Committee complaining that its proposed “MDL Rule” isn’t worth the paper it is printed on, and this latest absurdity will certainly be mentioned.

Anyway, CPAP II’s utter disregard for the federal rules was matched by its utter disregard for preemption, state law, and Erie conservatism in predicting such law.

Given the pro-plaintiff MDL treatment we’ve already described, it is hardly surprising that CPAP II bollixes the defendant’s implied preemption argument based on Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001).  CPAP II shrugs off plaintiffs’ repeated allegations that defendants “failed to apprise the FDA” of this or that, with the excuse that plaintiffs don’t really “rely” on them.  2023 WL 7019287, at *7.  Bizarrely, in applying Buckman, CPAP II relies on a “presumption against preemption,” id., citing a decision, In re Orthopedic Bone Screw Products Liability Litigation, 193 F.3d 781, 791 (3d Cir. 1999), from the same litigation as Buckman, and that Buckman overruled on precisely this point.  531 U.S. at 1017 (“no presumption against pre-emption obtains in this case”).

Buckman also rejected reliance on express preemption and instead reaffirmed “the ordinary working of conflict pre-emption principles, id. at 1019, yet CPAP II repeatedly interjected statutory express preemption language −  “different from, or in addition to” – to limit Buckman.  2023 WL 7019287, at *7 (twice), *8 (four times), *9 (twice).  Basically, CPAP II purported to do precisely what Buckman itself prohibited:  using express preemption to limit the “ordinary working” of implied preemption of fraud on the FDA claims.

In the interests of space, we’ll skip the lengthy discussions, id. at *9-14, of primary jurisdiction and subsumption by state product liability statutes.  The first is rarely a factor, even in litigation that doesn’t get the MDL treatment, and the second mostly moves claims around and changes their names rather than actually dismissing anything substantive.

Beginning with “negligent recall,” CPAP II addressed supposed “state law” claims.  We’re not 100% sure, but it appears that only ten states’ laws were at issue.  2023 WL 7019287, at *15-16.  CPAP II dismissed nine of the claims, which is better than what preceded or followed.  Still, predicting that Oklahoma would allow a failure-to-recall claim, based solely on a New York trial court purporting to predict Oklahoma law, is facially contrary to the Erie discussion in CPAP I (quoted above), that such predictions should only be based on authority from state appellate, preferably high, courts.  Indeed, when CPAP II articulated a standard at all – much later – it’s extremely pro-plaintiff and supported by precisely zero precedent:

In the absence of case law clearly precluding such a claim under [state] law, it will be recommended that [defendant’s] motion to dismiss Plaintiffs’ claims . . . be denied.

2023 WL 7019287, at *23 (emphasis added).  That standard more closely resembled the plaintiff-friendly standard for fraudulent joinder than the conservative Erie-based principles recognized by the Supreme Court and the Third Circuit.

Using this incorrect Erie prediction standard – a standard that facially contradicted the standard articulated in CPAP ICPAP II then proceeded to inflate supposed “state law” claims far beyond what any state high (or even intermediate appellate) court – allowed.  We start with the learned intermediary rule.  Citing no law at all, only that it is “counterintuitive,” CPAP II declared that the learned intermediary rule did not apply in cases where no warning (as opposed to an inadequate warming) was given concerning the relevant risk:

[I]t is counterintuitive to allow [defendant] the shelter provided by the learned intermediary doctrine when [it] appears to concede it did not provide any warnings regarding the Recalled Devices, whether to Plaintiffs or their physicians.

2023 WL 7019287, at *19 (citing nothing).

While collecting cases that hold to the contrary might be useful.  We haven’t done it, so what follows is hardly exhaustive.  We start with one of the most notable learned intermediary rule decisions of this century.  Centocor, Inc. v. Hamilton, 372 S.W.3d 140, 143 (Tex. 2012).  The Texas Supreme Court unanimously adopted the learned intermediary rule even though the plaintiff alleged that the defendant “intentionally omitted warnings about the [relevant] potential side effect.”  Id. at 143 (emphasis added).  Admittedly, Hamilton did not find this allegation significant, because the lower court had not gone so far out into left field to reject the rule on that basis.

However, a number of plaintiffs have asserted the same “no-warning-at-all” argument, and they’ve all lost, as far as we can tell, with courts finding the argument to be a distinction without a difference.  To the contrary, the learned intermediary rule applies whether “no warning was provided or the warning was inadequate.”  Motus v. Pfizer Inc., 196 F. Supp.2d 984, 991 (C.D. Cal. 2001), aff’d, 358 F.3d 659 (9th Cir. 2004).  “The [rule] presupposes that the physician will act as an intermediary” in both “a case of no warning [or] an inadequate warning.”  Ackermann v. Wyeth Pharmaceuticals, 471 F. Supp.2d 739, 747 (E.D. Tex. 2006), aff’d, 526 F.3d 203 (5th Cir. 2008).  “Plaintiff must allege that the inadequate warning or lack of warning…would have altered the [prescriber’s] decision to use the product.”  Tapia v. Davol, Inc., 116 F. Supp.3d 1149, 1158 (S.D. Cal. 2015).  Ebel v. Eli Lilly & Co., 536 F. Supp.2d 767, 781 (S.D. Tex. 2008) (applying the rule; rejecting distinction that “this is a ‘no warning’ case as opposed to an inadequate warning case”), aff’d, 321 F. Appx. 350 (5th Cir. 2009).  Those are just the reported cases.  See Munoz v. American Medical Systems, Inc., 2021 WL 1200038, at *2 (C.D. Cal. March 30, 2021) (following Motus); Mitchell v. Boehringer Ingelheim Pharmaceuticals, Inc., 2017 WL 5617473, at *6-7 (W.D. Tenn. Nov. 21, 2017) (allegation of “no warning” did not preclude the learned intermediary rule); Thompson v. Zimmer, Inc., 2013 WL 5406628, at *3 (D. Minn. Sept. 25, 2013) (the rule applies to both “inadequate warning” and “no warning at all” cases).

Yet, on the basis of nothing more than, apparently, the Special Master’s uninformed gut reaction, CPAP II issued a blanket ruling, apparently covering all fifty states, that the learned intermediary rule did not apply whenever a plaintiff alleged that “no warning” of the relevant risk was given.  This recommendation was so utterly unsupported by any precedent, and so blatantly contrary to controlling Erie standards, that we think it would support a mandamus petition on Erie grounds alone, should the MDL judge be misguided enough to adopt it.

Next, CPAP II stated that the plaintiffs’ fraud and negligent misrepresentation claims should be dismissed because they are not pleaded with sufficient particularity under Fed. R. Civ. P. 9(b).  2023 WL 7019287, at *20-22.  Good.  At least one of the Federal Rules still applies in the CPAP MDL.  CPAP II also contained extended dictum concerning how numerous states view negligent misrepresentation claims.  Id. at *22-29.  Rather than going through the various states, we note that here, as well, CPAP II:  (1) improperly applied the aforementioned expansive approach to state law by allowing claims unless state law “clearly” bars them.  Id. at *22 (Florida), *23 (Indiana, Minnesota); and (2) improperly based expansive predictions on nothing more than trial court decisions.  Id. at *25 (Delaware), *27 (New Jersey), *28 (Ohio, Pennsylvania, South Carolina).

We saw more of the same with the discussion of consumer fraud claims in CPAP II.  2023 WL 7019287, at *29-41.  See *29-30 (Florida), *32 (South Carolina), *33 (Alabama), *34 (Mississippi, West Virginia), *35 (California), *36 (Louisiana, Michigan), *37 (Mississippi, Montana, Vermont), *38 (Wyoming) (various iterations of the allow-unless-clearly-prohibited prediction standard, such as “failed to show that its Devices are not covered”); id. at *34 (Kentucky), *35 (Alabama), *36 (Indiana, Maryland), *37 (Montana), *38 (Virginia, West Virginia), *39 (Colorado, Connecticut), *40 (Michigan, Oklahoma) (reliance solely on trial court decisions – including out of state trial courts − to expand state law).

There being no precedent anywhere allowing an unjust enrichment theory of liability where the defendant in fact supplied the product that was purchased, CPAP II did the right thing and dismissed those claims.  2023 WL 7019287, at *41-43.  Any other ruling would have been an abuse of judicial power on the level of the recommendation’s avoidance of the learned intermediary rule.

There’s plenty more to complain about in CPAP II’s disposition of the remaining state-law issues, but we would be mostly repeating ourselves, since the basic problem is essentially the same – failure to apply anything resembling a proper framework for addressing Erie predictions of novel state law.  We’ll mention just a couple.

First, in addressing strict liability, CPAP II – predictably by this point – opts for the pro-plaintiff position on medical devices and Restatement (Second) of Torts §402A, comment k (1965), as to both California and Pennsylvania.  The California ruling is based on comment k being limited to implanted medical devices.  2023 WL 7019287, at *52 (citing another trial court case).  Once again, that’s simply wrong.  As we discussed more fully here and here, California appellate and trial courts (like numerous other states) apply comment k to medical devices that are not implanted.  The relevant California decisions are, Armstrong v. Optical Radiation Corp., 57 Cal. Rptr.2d 763, 772 (Cal. App. 1996) (non-implanted surgical aid); Trump v. Intuitive Surgical, Inc., 2020 WL 3163185 at *5 (N.D. Cal. June 12, 2020) (surgical robot); Mendoza v. Intuitive Surgical, Inc., 2020 WL 3078178 at *5-6 (N.D. Cal. June 10, 2020) (surgical robot) (applying California law).  Other applications of comment k to non-implanted medical devices may be found in §2.02[2] n.16 of Bexis’ drug and medical device product liability treatise.

CPAP II makes an equally pro-plaintiff – and equally wrong – expansive prediction that Pennsylvania will not apply comment k across the board to medical devices, as it has for 75 years rejected strict liability for other prescription medical products.  2023 WL 7019287, at *54.  CPAP II asserts that two cases that did not involve prescription medical devices at all changed Pennsylvania law.  But Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), involved pipe, and specifically exempted prescription products from the “proposition” CPAP II claims it established.  Id. at 382 (“but see” citation for prescription drug case).  Lance v. Wyeth, 85 A.3d 434 (Pa. 2014), involved prescription drugs, not medical devices and negligence, not strict liability.

Established statewide, binding Pennsylvania appellate authority, see Creazzo v. Medtronic, Inc., 903 A.2d 24, 31 (Pa. Super. 2006), holds that “same rational applicable to prescription drugs” applies to medical devices.  Once again, the only support that CPAP II relied upon from deviating from Creazzo were more federal trial court opinions.  2023 WL 7019287, at *54.  We dealt extensively with the first of those decisions, which discounted Creazzo because the plaintiff/appellant was supposedly pro se.  Schrecengost v. Coloplast Corp., 425 F. Supp.3d 448, 465 (W.D. Pa. 2019).  Schrecengost is wrong, not only for all of the reasons stated in our prior post, but also because – as we learned later – the plaintiffs in Schrecengost had misrepresented Creazzo to the court.  In fact, as we demonstrated here, the plaintiff-appellants in Creazzo were not pro se at all.  That notation was a publisher’s error, and both Westlaw and Lexis have since corrected that error.  An intermediate state appellate decision, such as Creazzo, is the most important evidence available when a federal court must make an Erie prediction of state law.  E.g., SodexoMAGIC, LLC v. Drexel University, 24 F.4th 183, 204 (3d Cir. 2022) (“[i]n making that prediction, the decisions of intermediate Pennsylvania appellate courts receive significant weight”) (citations and quotation marks omitted).  Thus, the Pennsylvania comment k prediction in CPAP II ignored the most significant Erie evidence, Creazzo, in favor of district court opinions that were decided on false premises.

The final criticism we have of CPAP II deals with its global denial of the defendant’s motion to dismiss the twentieth and final count of the MDL master complaint, for battery.  2023 WL 7019287, at *56-57.  Battery claims have been essentially nonexistent in prescription medical product liability litigation.  Where they have appeared, they have been dismissed.  Obermeier v. Northwestern Memorial Hospital, 134 N.E.3d 316, 335 (Ill. App. 2019); Daum v. SpineCare Medical Group, Inc., 61 Cal. Rptr.2d 260, 276 (Cal. App. 1997); In re Arizona Theranos, Inc., Litigation, 256 F. Supp.3d 1009, 1030-31 (D. Ariz. 2017); Money v. Johnson, 2016 WL 3055875, at *7 (N.D. Cal. May 31, 2016); Guinan v. A.I. Dupont Hospital for Children, 597 F. Supp.2d 485, 501-02 (E.D. Pa. 2009), rev’d in part on other grounds, 393 F. Appx. 884 (3d Cir. 2010) (applying Delaware law); Ramirez v. American Home Products, 2005 WL 2277518, at *11 (S.D. Tex. Sept. 16, 2005); Huntman v. Danek Medical, Inc., 1998 WL 663362, at *3 n.8 (S.D. Cal. July 24, 1998).

In 15 years of blogging we’ve mentioned battery claims exactly once, in passing in a case where the claim was dismissed.  Yet based entirely on cases involving environmental chemicals, and restatement sections (Restatement (Second) of Torts §§12, 18 (1965)) that have never to our knowledge been cited in any case involving a prescription medical product, the battery claims all survived.   Because “Plaintiffs’ allegations mirror the [non-prescription product] hypothetical proffered in the Restatement,” 2023 WL 7019287, at *57, CPAP II declared that novel battery claims stated a claim in essentially every state of the union.  This holding is every bit as massive an affront to the Erie doctrine as CPAP II’s similarly broad disregard of the learned intermediary rule, and was just as unsupported by any relevant precedent.

We’re not sure, as a general matter, that MDL special masters should even be delegated the task of deciding purely legal questions.  Nothing in CPAP II reduces our skepticism in this regard.  If the MDL court concurs in the wildly expansive state-law predictions that we’ve described in this post, we would hope that the defendant seriously considers an Erie doctrine-based mandamus to the Third Circuit.  What has happened in the CPAP – and is happening in other – MDLs amounts to the sort of extreme judicial overreach that that has supported prior mandamus appeals in MDL litigation.