A case we reviewed a couple of months ago came to mind recently, not only because of its result, but also because how long it has been kicking around in our federal court system, trapped in an MDL.  What refreshed our recollection?  As regular blog consumers have read this week, the annual ACI Drug and Medical Device Litigation conference was last week in New York, where we heard from an outstanding panel of attorneys on the Rule 16.1, the new Federal Rule that addresses multidistrict litigation.  We recently presented a CLE on that topic too, along with our colleague Christina Olivos.  One of our major beefs with MDLs is the tremendous overuse (abuse?) of MDLs by plaintiffs without tenable claims, sometimes by the thousands.  The result is clogged dockets, inattention to actual merits, inevitable delay, and unfair pressure to enter into mass settlements.  The new Rule 16.1 might help with this situation, but then again, it might not. 

This is not only a defense issue, as plaintiffs and their lawyers likewise find themselves stuck in MDLs with little control over their individual cases and even less attention.  The district court’s order in Mercier v. DePuy Orthopaedics, Inc., No. CV 23-0040, 2024 U.S. Dist. LEXIS 194642 (C.D. Cal. Oct. 25, 2024), illustrates the point.  In Mercier, the plaintiff’s decedent had hip replacement surgery, although we are not told when.  Regardless, he sued the hip implant’s manufacturer in 2015 alleging complications, and he filed directly into the Pinnacle Hip MDL in the Northern District of Texas. 

Then he waited.  And then he waited more.  And then some more.  As is common in multidistrict litigation, this patient’s case languished in the MDL for seven years, until being transferred to the Central District of California for pretrial and trial proceedings.  During that time, life and death intervened.  The patient moved from California to Nevada, and he sadly passed away in 2024 as the result of an opioid overdose. 

The administrator of the patient’s estate filed an amended complaint alleging survival claims, but also adding claims for wrongful death—claiming that the patient’s alleged hip-related injuries caused his death, too.  The issue was whether California law or Nevada law applied, since those states treat wrongful death and survival claims differently.  California’s wrongful death claim requires the joinder of all indispensable parties, and at the time the action was filed, California followed the rule that a plaintiff’s pain and suffering damages dies with him.  (California has since altered that rule.) 

The district court ruled that California law governed.  First, the court applied California’s choice-of-law rules, stating that choice-of-law rules “are substantive issues for Erie purposes, meaning federal courts in California will apply California choice of law rules.”  Id. at *6.  That’s fine, except that this case was filed in Texas, and we were taught back in the day that when a case is transferred, the substantive law transfers with it, including choice-of-law rules.  We would have applied Texas’ choice of law, but we digress. 

Second, the district court determined that California’s interest would be more impaired if its law were not applied to the case.  The court noted that California’s choice-of-law cases “continue to recognize that a jurisdiction ordinarily has the predominant interest in regulating conduct that occurs within its borders”  Id. at *14.  Here, the patient’s hip replacement surgery was in California at a time when he resided in California, and the device was allegedly manufactured and sold in California.  Moreover, because the plaintiff could cure any deficiency in the complaint with an amendment, applying California law would not impair Nevada law in the least.  One wonders why the plaintiff did not amend the complaint to begin with, instead of engaging in this motion practice, but again, we digress. 

So California law applies, and the plaintiff had to file an amended complaint joining all indispensable parties.  But that is not the story.  Instead we ask, What took so long?  This patient filed his complaint nine years ago, and the exceptional passage of time since then saw him move from one state to another and eventually pass away.  Imagine his frustration and that of the defendants, who have faced this claim for going on a decade and now face a wrongful death claim allegedly stemming from a surgery that occurred at least ten years ago, and maybe longer.  Maybe a rule like Rule 16.1 would have help move things along, and maybe not.