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When Summer temperatures rise, our analytical ambitions drop. Torpor sets in, and it sets in hard. It is no accident that it is in July and August when our posts are most likely to contain more pop culture than precedent. (Here is one of our favorite examples.) Meanwhile, this is also the time of year when we tinker with the lesson plan for the litigation strategy class we teach each Fall at the University of Pennsylvania Law School. One of the points we’ve been pounding home in that class over the last thirteen years is that lawyers can learn a lot from other occupations.

Lawyers, more than other learned professionals, seem allergic to systems.  But systems, routines, habits, etc. can be useful, even vital. For example, we’ve tried to show our students how lawyers can apply the medical profession’s SOAP (subjective, objective, assessment, plan) process when advising clients.  We also discuss the utility of the sorts of checklists that airline pilots go through when they climb into the cockpit. It is useful to have ready-made checklists at hand for responding to complaints, preparing deposition outlines, and putting on presentations before mediators and judges. And then there are the SWOT (strengths, weaknesses, opportunities, threats) analyses that even a wet-behind-the-ears MBA holder can deploy, while most attorneys have no clue about them. A cogent SWOT analysis can both frame a litigation strategy and guide a productive dialogue with the client.

What about chefs? Can/should lawyers adopt any of their practices?  Should we start our oral arguments with an amuse bouche?  Push the daily specials? There are some commonalities between the culinary and legal crafts.  Both are service industries.  Client satisfaction is essential to stay in business.  In the last episode of the most recent (the third) season of the Hulu/FX television show, The Bear, the great chef Thomas Keller (French Laundry, Per Se) says that running a restaurant is about nurturing. There’s some nurturing in the law, too, and not only with pro bono clients. Lawyers do their best to get clients through tough times. Preparing a C-suite witness for a hostile deposition involves more than a little hand-holding.

There is another commonality between lawyers and chefs: running a restaurant, like running a law firm, is a team effort. There is a division of labor.  There is hierarchy.  At the same time, there is plenty of room – sometimes too much – for individual expression. And, as Samuel Goldwyn bemoaned about movie studios, the key assets of law firms and restaurants go home every night. It takes only one disgruntled team member to undermine the entire effort, ruin team dynamics, or leave the rest of the team members hanging.  What good is whipping up a perfect souffle if it ends up in the diner’s lap?

All of which brings us to the question of whether we lawyers can learn anything from The Bear.  Larry David and Jerry Seinfeld famously decreed that there would be no learning allowed in the Seinfeld sitcom.  But we think it is possible to learn from almost anything, especially something as well conceived as The Bear.  If you haven’t seen the show, you should give it a try. One taste of it will likely have you coming back for more.  We know people who binge an entire season at a time.  Perhaps that is a bit gluttonous. 

The Bear won the Emmy award for best Comedy, which seems like a category error, even if the show has some humorous moments. The show is about a tortured, world class chef, Carmy Berzatto (nicknamed The Bear), who inherits an Italian Beef joint in Chicago.  (The details of how that inheritance happened is one of the crucial and continuing backstories in the show.) There are plenty of such casual sandwich restaurants in Chicago. Residents of the Windy City debate about which one is the best, just like people in our town choose sides over cheesesteaks.  We think Italian beef sandwiches are pretty darned tasty.  But Carmy has higher aims in mind.  After getting the employees into shape to elevate Italian beef, he pivots to turning the place into a fine dining experience.  Carmy’s aim is to earn at least one Michelin star. 

It reminds us of a couple of law firm leaders we worked with who were determined to elevate their firms into the top tier (measured by some combination of prestige, quality, and the inevitable profits-per-equity-partner).  It takes vision.  It takes commitment.  It takes work.  It is not easy.

Seasons one and two of The Bear gave us some of the best television episodes in recent memory. The show can be riveting and surprising.  It can also be stressful. In season one, we squirmed during an episode where too many orders came in too fast via an automated system.  There was too much for the staff to do in too little time.  The click-a-click-a-click-a of the incoming orders became maddening. One of the themes of The Bear is that “every second counts.”  Time is short.  Getting things right under time pressure is hard, but it is necessary.

The best episode in season two showed how a rough-around-the-edges-‘cousin’ discovered the meaning of service by working one week at a Michelin starred restaurant. Everything had to be perfect.  Forks were polished and placed just so.  (It was a real Chicago restaurant — Ever.) in another episode, the quiet, contemplative dessert chef honed his craft during a brief sojourn at Noma, the Copenhagen restaurant that often topped Best Restaurant in the World lists. And then there was the fan favorite episode when a family Feast of the Seven Fishes turned crazy and violent. 

The Bear treats all of its characters with respect.  But if we had to single out one obsession in the show, it is the exploration of what inspires Carmy’s drive to sling excellent, astonishing, thrilling food (e.g., lemon chicken piccata, cola-braised short ribs with risotto, plum gelee, a perfect donut, and an even more perfect omelet) — and what costs are associated with such a drive. Stress is clearly a cost. We know many viewers of The Bear who reported that some episodes took their blood pressures on roller coaster rides.

Season three is more of a mixed bag. Maybe that is because it seems designed to set up season four, which was filmed simultaneously with three. In the first episode of season three, Carmy sets out his rules for the restaurant.  He calls those rules “Non-Negotiables.”  Several critics have asserted that season three failed one of those rules: “Less is more.”  Or, as a tyrannical chef who trained Carmy said in one unpleasant teaching moment, “Subtract.”There does seem to be a bit too muchness this season.  A lot of emotional plate-spinning takes place. 

The ideas of “less is more” and “subtract” can apply to the law as well.  At a bench-bar conference we attended a couple of weeks ago, and which we alluded to here, plaintiff lawyers and judges poked fun at defense hacks for filing Rule 702 motions against every plaintiff expert on every ground in every case.  We’ve also heard judges criticize legal briefs for loading up on too many arguments, as opposed to prioritizing the strongest or most important ones.  And who hasn’t heard a judge complain that the parties were “overtrying” a case? To be sure, the sin of too muchness is not confined to the right side of the v.  We have posted on instances (here, for example) in which plaintiffs put too much in their complaints, effectively pleading themselves out of court.

So “less is more” is a good rule in the kitchen and the courtroom.  Do not bury the wagyu strip under a pile of creamed corn.  Do not bury your best argument under a pile of trivial or weak points.

Another of Carmy’s Nonnegotiables is “Focus,” which seems to be the right corrective for too muchness. The applications to the law of other Nonnegotiables such as “Pursuit of excellence,” “Always improving,” and “Know your s****,” seem self-evident.  Law firms sometimes simply assume that graduates of top-flight law schools will come on board with all those virtues in place.  They are wrong.  Training is needed.  Do not fool yourself into thinking that throwing young lawyers into the deep end will turn them into Michael Phelps.  In real life, people do occasionally drown.  Carmy also insists on “Consolidation and speed” and “In and out service.”  He is not running a fast food outlet, so why all the insistence on celerity?  The answer is that there is a lot to do in the kitchen, and customers do not like to be kept waiting.  We think “In and out service” does not refer to the SoCal burger chain (splendid though it may be), but, rather, to the concept of rendering superior service during every aspect of the work.  A long time ago, we heard that Joe Flom, the lawyer whose vision turned Skadden into a premier law firm, had a policy of answering his own phone and of returning every client call promptly.  If Joe Flom could do that, what could possibly be our excuse for not doing it?  Fast responses and the ability to produce first rate work product quickly are hallmarks of a successful law firm.  We wish we could say that the key is to work smarter, not harder.  The reality is that good lawyers must work smarter AND harder.

Carmy’s list includes the rule that “Details matter.”  We remember when “attention to detail” had its own section on law firm internal evaluation forms.  We want young lawyers to display analytical ability and creativity.  But, at a minimum, we need young lawyers to make sure all the details are considered and handled correctly. Citing overruled cases, citing cases for basic propositions even though those same cases are adverse on more important points, ignoring Local Rules, and spelling the client’s name wrong are wonderful ways to lose credibility.  It’s like ordering a salad with the dressing on the side, and then getting your plate with greens swimming in vinaigrette.  You just know the meal is going to be subpar.

The relevance of other Nonnegotiables is a bit more obscure.  The first Nonnegotiable on Carmy’s list is “of the place.” Huh?  We are not even sure what that means in terms of food preparation. Maybe it refers to local ingredients. More than once, characters in the show say that “what grows together goes together.”  The best we can do in terms of a legal analogy is the importance of understanding the rules in specific jurisdictions.  There are lots of local traps for the unwary out there, so don’t be unwary.  For example, we found out that how one argues for exclusion of experts in Illinois state court (they are called Frye motions, not Daubert motions there) is very specific and very different from other courts, including other courts that purport to apply the Frye standard. Also, before you defend a deposition, make sure you know what the local rule is as to whether you can confer with the witness during breaks. (Luckily for you, we have some posts on precisely that issue.)

We do not agree with every one of Carmy’s rules.  He forbids repeat ingredients and wants a new menu every day.  For the legal profession, we need to repeat arguments.  It is hard to ask a judge to do something that has never been done before.  Then again, we should never develop arguments simply by rote.  There is room for innovation.  But innovation for the sake of innovation might just be showing off, and that is counterproductive.  In The Bear, Carmy’s insistence on never repeating menu items creates problems.  The Chicago Tribune sent a photographer to the restaurant to take pictures that would accompany an upcoming review.  The photographer wanted to snap a picture of a duck dish that the reviewer had tried.  Guess what?  Duck was off the menu the day the photographer was on site. Not good.   

In real life, we complain when we see the same menu month after month, and year after year.  At the same time, customers hear about superb dishes and want to try them.  When we went to Paul Bocuse’s restaurant many years ago, we were salivating at the prospect of trying his famous fish-in-pastry recipe.  It did not disappoint.  If it was not available, we would have felt cheated. 

Our favorite Nonnegotiable is “vibrant collaboration.” The beauty of The Bear is that we come to admire and care about all the employees at the restaurant.  They each get their moments to shine. They are motivated by Carmy’s vision. But does Carmy practice what he preaches?  He is too often dismissive of suggestions by his sous chef, Sydney. That dismissiveness, plus Carmy’s monomania, might result in his loss of his most important coworker — and he does not have a clue that her departure is in motion.  Carmy also does a lot of yelling, and he chases away his only shot at a love interest. After a point, the viewer wonders whether Carmy is the hero of the show.  Or is he the latest in the line of “difficult men” who populate prestige television (Tony Soprano, Don Draper, Jimmy McNulty)?

How did Carmy get the way he is – so talented, so wounded?  Carmy had several chef mentors throughout his career.  We mentioned Thomas Keller above. Carmy also worked with Daniel Boulud, one of New York’s finest chefs.  He also worked with another, fictional chef, played by Olivia Colman.  Keller, Boulud, and Colman are all shown in flashbacks to be gentle, supportive, albeit firm, teachers.  But the chef who seems to have made the biggest mark on Carmy is a fictional chef played by Joel McHale.  McHale’s method of instruction is harsh and demeaning.  He might have been “vibrant,” but there does not appear to have been much collaboration.  In the finale of season three, Carmy confronts McHale to gripe about past cruelties. McHale smugly says, “You’re welcome.”  McHale tells Carmy that Carmy got great at what he does because McHale set such high, unforgiving standards. Maybe that is so, but the cost seems too high.  Carmy apparently gets no satisfaction from his wonderful cooking, and manages to repel colleagues and loved ones. 

It used to be well accepted that law students and young lawyers had to run a gauntlet of brutality.  Law professors eviscerated students with the Socratic method of guess-what-I’m-thinking.  First and second year associates pulled all-nighters and were berated for any shortcomings.  We blogged a couple of years ago about a lawyer who made us better – a better researcher, better writer, and better thinker – by setting expectations in the stratosphere and then verbally blasting us if we fell short of such expectations.  Thank goodness we had the opportunity to work with him, but also thank goodness he wasn’t the only mentor we had.  One can certainly learn from a tough, taskmaster boss. But one wouldn’t want to spend one’s entire career at the mercy of a shouter.  And we wouldn’t want to be that shouter.  “Vibrant collaboration” must consist of more kindness than cruelty. 

We suspect that in season four of The Bear Carmy will come to understand what vibrant collaboration means.  The chef played by Olivia Colman says that customers at a restaurant end up remembering more about how well they were treated and less about the particulars of the food. People matter more than things. That’s a lesson we all can learn, whether we dish out Beef Wellington or preemption arguments. And then perhaps we will achieve another one of Carmy’s Nonnegotiables — “joy.”

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The plaintiff in Pachecho v. Johnson & Johnson, 2024 WL 3260883 (M.D. Ga. Jul. 1, 2024), both over-pleaded her causes of action and under-pleaded their factual support (at least as to manufacturing defect).  Both errors led the court do a little pruning.  And while the cases continues, we hope in its uncluttered state, the weakness of the surviving claims more readily stands out.

First up were plaintiff’s over-pleaded negligence and gross negligence claims.  Plaintiff alleged defendant was negligent or grossly negligent in “the design, manufacture, testing, inspection, processing, advertising, marketing, labeling, assembling, packaging, distribution, detailing, promotion and sale of the Product.”  Id. at *1.  Defendants argued that the only potentially viable negligence-based claims were for the “three recognized” products liability claims—design defect, manufacturing defect, and failure to warn.  Id. at *3.  Looking to decisions by other district courts on the issue and the Third Restatement of Torts, the court here agreed.  Id. at *4. 

Of particular importance is the court’s rejection of a claim for failure to test.  Georgia law does not recognize such a claim.  Therefore, an allegation that a defendant failed to adequately test a product is merely a sub-part of one of one of the recognized duties.  Id. In other words, there can be no liability for failure to test absent proof of a design, manufacturing, or warning defect.  Think of it this way, a plaintiff can argue that additional testing should have been done, but if she cannot establish a defect in the product that caused her alleged injury, whether and how much testing a defendant did is irrelevant because the lack of testing itself cannot be the cause of the injury.  Id.  Therefore, plaintiff cannot have an independent claim for failure to test.  Or for that matter, for failure to inspect, failure to process, and so on.  Plaintiff’s negligence claims are limited to design, manufacturing, and warning. 

Defendants next argued that because plaintiff’s negligence, gross negligence, and strict liability claims are all based on the same grounds, they should be consolidated.  Here the court only agreed in part.  Under Georgia law, strict liability design defect claims are subject to a risk-utility analysis, “which incorporates the concept of reasonableness”—a negligence principle.  Id. at *5.  Therefore, the difference between a strict liability design defect claim and a negligent design defect claim is one of “semantics.”   Id. Since duplicative claims should be consolidated, the court granted that portion of defendants’ request.  However, because reasonableness is not an element of plaintiff’s strict liability manufacturing defect and failure to warn claims, or any of her gross negligence claims, the court did not agree to consolidate those.  Id. at *6. 

Which brings us to plaintiff’s under-pleading.  Unlike a design defect claim, a manufacturing defect claim must plead a “deviation” from a standard or a departure in the manufacturing process.  Id. at *7.    While plaintiff’s complaint contained the word “deviated,” it lacked any “facts . . . supporting the bare legal assertion that they were “deviat[ions] … from Defendants’ design and manufacturing specifications.”  Id. at *8.  Plaintiff failed to plead any facts showing what the product’s intended design or specifications were, how defendants deviated from those specifications, or how such a deviation caused plaintiff’s injury.  Therefore, she has not stated a manufacturing defect claim—in strict liability, negligence, or gross negligence.  Id.

In sum, plaintiff lost all her manufacturing defect claims and her failure to test claims. Leaving only design defect and warning claims which historically post-remand plaintiffs in the mesh litigation have struggled with.  Limited to these pared down claims is certainly not where plaintiff wanted to be.

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This is from the non-Dechert and non-Reed Smith side of the Blog.

We are not bankruptcy lawyers.  So, even though we are discussing a Supreme Court decision on the powers of a bankruptcy court, we are not purporting to be experts in that area.  The decision, of course, is Harrington v. Purdue Pharma L.P., 603 U.S. –, 2024 WL 3187799 (June 27, 2024), and it relates to a bankruptcy pursued in relation to actual and potential liabilities from a range of opioid litigation.  We have discussed opioid litigation quite a bit, within the bounds of frequent disclaimers.  While public discourse about the most recent opioid epidemic in the United States has generally addressed the human cost of opioid abuse and its persistence despite a variety of governmental actions and policy initiatives, our focus has been on the use of public nuisance as the basis for many governmental suits that threatened huge liability for a range of defendants to essentially reimburse governmental entities for expenditures allegedly tied to the epidemic.  After a number of trial courts, including MDL No. 2804, greatly expanded the scope of public nuisance compared to how it had been applied for centuries, the clear trend has been for appellate courts to reverse.  Simply put, a county utilizes tax revenues to provide governmental services, including social services, operating a morgue and coroner’s office, offering emergency medical services, and sometimes offering drug rehabilitation services.  It is not entitled to get reimbursement for its expenditures from a person or entity it claims necessitated them, any more than it would be entitled to the costs of repairing a guard rail or repainting the road after a traffic accident.  Of course, causation is also extremely tricky in part because a large number of criminal actors—from cartels to dealers to those who divert prescription drugs to those who illegally purchase a street drug or a prescription drug without an actual prescription—play a role in the epidemic.  Without arguing for or against the role of any prescription drug manufacturer, any distributor, or any retailer in the epidemic, it is hard to pretend that responsibility for the epidemic writ large, or any small slice of it, is simple.  (We could probably say the same about the crack epidemic or other periods of significant problems in the U.S. with a particular street or diverted drug, none of which led to an attempt by struggling governmental entities to use public nuisance as a means to get at deep pockets.)

This is part of what struck us about the Harrington decision.  The majority opinion used the term “victim” nineteen times in referring to opioid litigation plaintiffs, potential creditors of Purdue, and those who would receive compensation according to the bankruptcy plan that it overturned.  The 184 uses of “victim” in the much longer dissent covered these categories as well as those whose claims might be addressed in the bankruptcy of any entity subject to a mass tort.  By contrast, there was no mention in either opinion of public nuisance, in pari delicto, or any non-bankruptcy decision in connection with opioid litigation.  The majority opinion, in particular, seemed not particularly well-versed in the details of opioid litigation, suggesting that the liability for Purdue and its owners, officers, and directors related to product liability suits by individuals who abused opioids or were affected by the abuse of family members.  Direct product liability actions like that, including a wave against Purdue in the early 2000s related to Oxycontin, have generally been unsuccessful.  As one court put it in granting summary judgment against plaintiffs (previously purportedly on behalf of a class) asserting product liability claims related to Oxycontin, “[t]his Court, however, will not accept the plaintiffs’ ‘victimization’ mentality.”  Foister v. Purdue Pharma, LP, 295 F. Supp. 2d 693, 695 (E.D. Ky. 2003).  The criminal acts of the plaintiffs and their decedents, along with “the warnings and instructions provided by the defendants and by other third party intermediaries” severed any proximate cause for the purported injuries.  They still usually do.  (See here, here, here, here, and more generally here.)

This is why the expanded version of public nuisance was so popular to opioid plaintiffs.  Faced with huge potential liability to governmental entities, the Purdue bankruptcy estate offered to provide compensation for certain individuals who would never have been able to recover directly.  Litigants often settle to avoid the cost and uncertainty of trial.  Litigants who become claimants when the defendant seeks bankruptcy protection may get less than they would have had they won a trial, but they avoid the cost and uncertainty of pursuing a case to a successful trial verdict and possible appeal.  As the Harrington dissent put it,

Bankruptcy seeks to solve a collective-action problem and prevent a race to the courthouse by individual creditors who, if successful, could obtain all of a company’s assets, leaving nothing for all the other creditors. The bankruptcy system works to preserve a bankrupt company’s limited assets and to then fairly and equitably distribute those assets among the creditors—and in mass-tort bankruptcies, among the victims.

2024 WL 318779, *12.  As non-bankruptcy lawyers who defend drug and medical device companies in mass torts and write about developments in the field, this description certainly squares with the practice we have observed.

The primary issue in Harrington was that the bankrupt company that sought protection, Purdue, also sought protection for its primary owners, directors, and officers, collectively “the Sackler Family.”  While there may be some circumstances in this case that set it apart from the usual mass tort bankruptcy discussed by the dissent, the focus on owners, directors, and officers of a business entities as being distinct from the bankrupt company that sought protection seems strange to us.  Absent proof that the corporate veil should be pierced, a lawsuit against a company does not open the door to the assets of its owners.  Also, in product liability and, we suspect, actual public nuisance, it is rare that officers and directors of large corporations have personal liability.  Under Supreme Court authority on personal jurisdiction, which generally respects corporate form (e.g., not inferring a subsidiary’s jurisdictional contacts to its parent), an individual who, for example, lives and works in New York is unlikely to be amenable to suit in Oklahoma, Kentucky, or West Virginia simply because of the contacts of a New York-based company of which she is a partial owner, officer, and/or director.  As both opinions discuss, any claims against the Sackler Family would likely be subject to indemnity from Purdue, so such claims could be seen for bankruptcy purposes as claims against Purdue.  In this way, the majority opinion seems off.

Others will write and have written about the proper interpretation of a bankruptcy court’s authority under 11 U.S.C. § 1123, which the 5-4 majority in Harrington held did not support extinguishing claims against the Sackler Family.  The issue for us is what this decision means for the use of bankruptcy in the mass tort context.  As the dissent noted,

For decades, bankruptcy courts and courts of appeals have determined that non-debtor releases can be appropriate and essential in mass-tort cases like this one. Non-debtor releases have enabled substantial and equitable relief to victims in cases ranging from asbestos, Dalkon Shield, and Dow Corning silicone breast implants to the Catholic Church and the Boy Scouts. As leading scholars on bankruptcy explain, “the bankruptcy community has recognized the resolution of mass tort claims as a widely accepted core function of bankruptcy courts for decades”—and they emphasize that a “key feature in every mass tort bankruptcy” has been the non-debtor release.

Id. at *13 (citation omitted).  Is that all gone after Harrington?  Maybe not. 

After all, there was “nearly universal” support for the plan that discharged the Sackler Family, including “virtually all of the opioid victims and creditors” and “all 50 state Attorneys General . . . a rare consensus.”  Id. at *12.  (DOJ also resolved all of its criminal and civil investigations as to Purdue and civil investigations as to the Sackler Family subject to the bankruptcy court’s approval.)  If the frequent use of the word “victim” were insufficient to show what justices in both camps felt about the underlying litigation, then check out the references to the Sackler Family being responsible for a wide range of harms without specifying legal theories, courts, or other details.  Both opinions also declared that Congress was the appropriate forum for the change in law for which the corresponding adverse opinion allegedly advocated.  (We note that the majority implicitly advocated for an expansion of state tort law, something best left to state legislatures.)  The Court clearly did not view this as a typical mass tort that might lead to a request for bankruptcy protection for a defendant.  In addition, the majority opinion described more than a decade of the systematic transfer of assets from Purdue to the Sackler Family in connection with predicted liabilities from litigation.  We hazard that allegations of fraudulent transfers out of a company that is going bankrupt due to product liability or mass tort litigation are exceedingly rare at a level close to what was alleged here.

Focusing back on the “typical” mass tort that could result in a defendant seeking bankruptcy protection, nothing in Harrington limits the ability of the logical corporate defendant—for example, the entity that designs, manufactures, and sells a prescription medical product—from utilizing chapter 11 for protection for itself.  The change relates to entities or individuals that would not be the petitioner/debtor, but could conceivably have liability in the litigation.  That would include individual or corporate owners—but not random minority shareholders of a public company—directors, and officers.  Except in rare instances where the parent company has no assets except for the debtor company, we do not see many of these individuals or entities choosing to be additional debtors.  Instead, it may be advisable to get rulings that the individuals and entities do not have any liability to the various plaintiffs.  Given the “case or controversy” requirement, such rulings would likely require being added to lawsuits in courts of competent jurisdiction, permitting enough discovery to determine the issues (e.g., following corporate formalities and proper accounting practices to avoid piercing the corporate veil), and getting favorable rulings affirmed on appeal.  If bankruptcy courts cannot do what they have been doing for quite some time in terms of bankruptcies driven by mass tort liability, then there would need to plenty of extra work to get to the same place and avoid second rounds of litigation against targets not covered by the debtor’s plan.

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This post is not from the Reed Smith, Dechert, or Holland & Knight side of the blog.

We’re pretty sure no one teaches about MDL census registries in law school. They’re a relatively new creation, and we previously blogged about them here. Essentially, registries create a mechanism where plaintiffs’ counsel can park potential claims without paying a filing fee while records are collected to determine if the claimant can establish Rule 11 basics like product use and injury.  Records are typically collected by a vendor—for which the MDL defendants pay half the costs. The benefit defendants receive is a commitment that, if the claim is ultimately filed, it has to be filed in the MDL or other federal court.

Continue Reading More from the Zantac MDL – Census Registries and Enforcement of Forum Selection Certifications
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 Lokkart v. Aziyo Biologics, Inc., 2024 U.S. Dist. LEXIS 111265 (C.D. Cal.  May 29, 2024), is yet another case arising from the unfortunate contamination of a batch of tissue allograft with a disease. We have written about similar cases before. These cases have consistently produced favorable precedent concerning state human tissue shield statutes (in this instance, in California). 

In Lokkart, the plaintiff alleged that she was infected with tuberculosis from a human tissue allograft that was implanted in her foot during bunion correction surgery. The plaintiff alleged that she suffered serious and continuing injuries from that infection. She and her husband filed a complaint against the defendants. The complaint included causes of action for strict products liability, negligence, and breach of the implied warranty of merchantability. 

The defendants moved for partial summary judgment. The central legal issue was whether California’s human tissue shield statute (Cal. Health & Safety Code section 1635.3) barred the strict liability and warranty claims.  

The court dismissed the strict  liability and warranty actions because the state’s blood shield statute facially applied. The statute characterizes the processing, storage, distribution, etc. of tissue for the purpose of transplantation to be a service that is not subject to the sales and warranty provisions of the state’s Commercial Code. California courts have held that the explicit exclusion of warranty liability was also an implicit exclusion of strict liability. 

Against what appears to be controlling precedent, the plaintiffs argued that whether the product implanted in this case met the definition of “tissue” under the statute was open to question and required a factual analysis that could not be resolved at the pleading stage. But the problem for the plaintiffs is that their own pleading – the complaint – repeatedly referred to the product at issue as being a human cellular and tissue based product harvested from cadavers.  That description matches the language in the California shield statute.  

The plaintiffs’ attempt to “sidestep their own allegations” was premised on the theory that the implanted product had been so heavily manipulated, altered, and processed such that it no longer met the statutory definition of human cells.  The court disagreed. That human tissue is processed into a product before being used does not make it any less human tissue.  The terms of the statute do not admit of such an exception, since the statute actually includes “processing.”  Moreover, there is no inherent contradiction between something being both “tissue” and “manufactured.”  Plenty of other courts held that human tissue allografts fall under the California human tissue shield statute, “even when they have been processed and altered.”

Further, the product packaging, which was quoted and incorporated by reference in the complaint, recited that the product was regulated as a “Human Cellular and Tissue Based Product” (HCT/P) under 21 C.F.R. section 1271. The only fair reading of the federal regulations is that the defendants’ product was human tissue.  Under those regulations, an HCT/P must be “minimally manipulated,” which is defined as “processing that does not alter the relevant biological characteristics of the cells or tissues.”  Given that standard, the court rejected the plaintiffs’ hypothetical argument that the allograft product no longer  qualified as a “group of [human] cells.”  

Accordingly, the court dismissed the plaintiffs’ claims for strict liability and breach of warranty.  Presumably, all that is left is a claim for negligence. 

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How is the Georgia General Assembly like Dr. Seuss’s kind-hearted Horton the Elephant?  They both meant what they said and said what they meant.  Horton was talking about an elephant’s faithfulness (being 100%).  The Georgia General Assembly was talking about requiring that product liability claims be initiated within ten years from “the first sale for use or consumption” of the product allegedly causing injury.  Unlike Dr. Seuss who delivers Horton’s heroic tale in anapestic tetrameter, the court in L’Oreal USA, Inc. v. Burroughs, 2024 GA App. LEXIS 250, *14 (GA Ct. App. Jun. 21, 2014), limited its poetic meter to that one line.  And so, will this post.

Burroughs isn’t a drug or device case.  But as is often the case with prescription drugs, plaintiff alleged that she purchased and used certain cosmetic products over many years.  Her first purchase was in 1995 and her last was in 2014.  Plaintiff alleges she suffered an injury in 2018 caused by her prior use of those products and she filed suit against the manufacturers in 2022.  Id. at *22.

In response to defendants’ motion to dismiss her claim as barred by Georgia’s 10-year statute of repose, plaintiff argued that each purchase and use of the products “constituted a new exposure to a new product.”    Id. at *5.  An argument the trial court accepted, ruling that the “last sale” triggered the statute of repose.  Id.  Fortunately, the Court of Appeals disagreed.

Nowhere does the Georgia statute of repose mention application or use of a product.  Its sole triggering event is “first sale for use or consumption.”  To interpret the statute as plaintiff urges would make the word “first” “mere surplusage.”  Id. at *14-15.  Had the General Assembly wanted to allow “any” sale to be the trigger, rather that the “first” sale, it would have said so. 

In focusing on the “last” sale, the trial court misapplied an earlier decision by the Court of Appeals in which that court held that the “last sale” of a finished product to a consumer, rather than inter-manufacturer sales of component parts, was the relevant sale. *9. 

Plaintiff next tried to argue that her claims should survive dismissal because the question was really one of causation.  She should be given the opportunity to prove that it was a product purchased within the repose period that caused the injury.  Id. at *13.  Not only did the court disagree, but it pointed out that plaintiff’s complaint made no allegations that would support this new theory.  Plaintiff did not allege that the products changed over time nor that it was the products she used within ten years of filing her claim that caused her injury.  Id. at *15.  If plaintiff wanted to make a run at bypassing the statute of repose, she needed to introduce supporting allegations into the “framework of her complaint.”  Id.

The trial court also made a passing reference to the statute of repose possibly triggering from plaintiff’s date of injury.  But the appellate court simply pointed out that statutes of repose are not statutes of limitations, and the former are not triggered by the injury. *9.              

By no means did we undertake a complete survey of all products liability statutes of repose, but a quick search did reveal that several use the same “first sale” language as Georgia’s.  So, we hope that other courts would likewise hold that successive uses of the same product by the same person for which injury is claim do not restart the repose period.  While that is the message relevant to prescription drug litigation, we can’t help but end our post with Horton’s more profound and globally noteworthy lesson – A person’s a person, no matter how small.

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We could care less about almost everything in Driver v. Naranjo, 2024 WL 2869367 (S.D. Cal. June 6, 2024), which dismissed an overly litigious pro se prisoner’s product liability and other claims involving his purportedly forced use of a prescription drug.

But Driver’s first footnote raises an interesting question of judicial notice – whether notice can extend to the “characteristics” of prescription medical products. Driver held that “[t]he Court may take judicial notice of medical facts regarding prescription drugs, their active ingredients and effects.”  2024 WL 2869367, at *1 n.1.  The opinion cited two cases for that proposition, United States v. Howard, 381 F.3d 873, 880 & n.7 (9th Cir. 2004) (taking judicial notice of certain effects of a drug listed in the product warnings reprinted in the Physician’s Desk Reference (“PDR”)); and Lolli v. County of Orange, 351 F.3d 410, 419 (9th Cir. 2003) (“Well-known medical facts are the types of matters of which judicial notice may be taken.”) (citation omitted).

Continue Reading Are Prescription Medical Product Characteristics Subject to Judicial Notice?
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Back in 2008, when Blog was less than two years old, we wrote a practical post entitled “Defense Amici – One Stop Shopping.”  It arose from blogposts we wrote examining the arguments made by defense-side amici curiae in the Riegel, Kent, and Levine (twice) cases then pending in the United States Supreme Court (yes, it’s been that long).  Describing the various amici arguments started us thinking about how could we get in touch with these resources should we ever be in the situation should we become party to an ultra-high profile appeal.

We did that because defense-side amici in big cases put together arguments that the rest of mere mortal defense counsel can use to a client’s benefit.  But how do mere mortals get these amici, should we need them?

That’s what this (updated) post is about.

Suppose that defense counsel – representing, say, a small medical device company (which recently happened in Himes) or a non-target defendant in some multi-district litigation morass (as in Buckman) – ends up grabbing the tiger by the tail.  Counsel obtains a major win (yay!), or worse, takes a significant hit (boo! – but it does happen).  The case goes up on appeal raising a significant issue.  Maybe it even goes to the United States Supreme Court.

Boom!  Lightning strikes.

The Supreme Court takes the case.  It can happen – it did happen to Pamela Buckman.

All of a sudden, the case is a very big deal.  All of a sudden, so-so opposing counsel disappears, and the plaintiff is now represented by the Public Citizen Litigation Group or some similar appellate specialist.

The defense needs amicus curiae support.

Counsel doesn’t want to get slimed.  So….  Who ya gonna call?

In this business, it ain’t Ghostbusters.

That’s what this post is all about.  Just like in 2008, we’ve reached out to major national defense-side amicus groups to get the basic information that defense counsel in such a situation need to bring a case to their attention.  And these are just the national groups.  If you’re in a state appellate court, also consider state-specific defense-side groups.  Moreover, some of the groups listed below have state affiliates.

One piece of general advice – near and dear to Bexis’ heart particularly, since he writes briefs for some of these groups:  Don’t waste any time making contact.  Any amicus group needs (and, as importantly, likes) sufficient time to consider the merits of a case, to make a decision, to engage a brief writer, and to get a persuasive brief written.  The timing for amicus briefs is (in most jurisdictions, but there are notable exceptions) tied to the due date for the principal brief filed the side being supported.  That means, especially when appealing a loss and having to go first as appellant, defense counsel needs to get the client on board, contact these groups, and submit the case to them as soon as possible after the matter has been accepted for further appellate review.

We can’t emphasis the importance of timing enough.  The likelihood of getting amicus support is very much inversely related to the time available to get a brief approved, written, and filed.

With that, here are the amicus players in the drug and device area that we know enough about to ask, and here’s what they need when considering whether to appear as amici in any given case.

AAM (Ass’n for Accessible Medicines):  AAM is the major trade association for manufacturers and marketers of generic drugs and biosimilars.  AAM’s primary focus is on patent, antitrust, and (most relevant to product liability) preemption issues related to generic drugs and regulatory issues involving approval of generic drugs and generic exclusivity.  The contact person for submitting a case to AAM is Karin Hessler (  Cases are submitted to AAM’s board of directors, and they have three weeks to decide whether AAM will appear as amicus.  Cases submitted with less than three weeks’ notice must be “extraordinary” to be considered, so act quickly.  AAM has no particular submission form to complete; a letter explaining the matter and the reasons why it should participate is sufficient.  Applicants are expected to submit whatever information they believe AAM’s board reasonably needs to evaluate the case.  Submitters are typically AAM members, but membership is not required.

AdvaMed – the medtech association (Advanced Medical Technology Ass’n):  AdvaMed is the world’s largest association of medical technology manufacturers, so medical technology cases are the primary focus of its amicus activity.  AdvaMed primarily appears in federal appellate courts, but will consider other courts (e.g., state high courts) if the case is important enough.  The contacts for submitting a case for AdvaMed’s consideration are Patrick Fogarty, Deputy General Counsel, ( and Christopher White (  There are no particular forms to fill out.  A detailed email with the opinion and relevant pleadings attached will suffice.  AdvaMed has a dedicated review committee  and prefers six weeks lead time to consider a case.  It will not consider a case submitted with a less than three weeks lead time.  AdvaMed may join another amicus brief or file its own as the needs of the case require.  It helps, but is not essential, for the client to be an AdvaMed member.

ALF (Atlantic Legal Foundation):  ALF’s relevant core issues are:  individual liberty, free enterprise, limited and responsible government, and sound science in judicial and regulatory proceedings.  Counsel seeking ALF amicus support in an appellate case need to complete this Amicus Support Request form and submit it to ALF Executive Vice President & General Counsel Larry Ebner (  ALF can rarely file an amicus brief anywhere with less than 30 days advance notice, and at least 45 days in the Supreme Court.  ALF has no “members” and does not consider possible financial contributions in deciding whether to appear as amicus.

ATRA (American Tort Reform Ass’n):  ATRA’s signature issue is tort reform, however, it’s branched out lately and will file briefs on other important tort law issues.  You (or your client) must be an ATRA member for any request to be considered.  Contact people for submitting a case for ATRA’s consideration are Tiger Joyce ( or (Lauren Sheets Jarrell at  ATRA has no specific turnaround time requirements.  There’s no set form to fill out, and ATRA will tell you what it needs in any given case.

BIO (Biotechnology Innovation Organization):  BIO will consider appearing as amicus curiae in any case with broad implications for the biotech industry, particularly where biotechnology is affected differently than the pharmaceutical or medical device industries.  BIO has two points of contact for amicus brief requests:  For health issues, including pharmaceutical reimbursement, FDA regulatory, antitrust (FTC, pharma M&A), and product liability contact John Delacourt (  For IP issues, including patentability standards, PTO and PTAB procedures, artificial intelligence, and FDA Orange Book listings, contact Hans Sauer (  The longer lead time BIO has to consider a case, the better.

DRI (Defense Research Institute)/DRI Center for Law and Public Policy (the Center):  At the recommendation of its Amicus Committee, the Center files amicus curiae briefs in cases presenting issues important to civil litigation defense lawyers, their clients, and the civil justice system.  The Center primarily participates in U.S. Supreme Court cases, at both the certiorari and merits stage, and occasionally in federal courts of appeals cases.  Amicus participation in state appellate courts requires consultation with relevant state or local defense organization (SLDO).  The Center usually files amicus briefs in its name only.  Criteria for participation are:  that the Center can add something new and meaningful to the arguments; the importance of the case or issues; and consistency with DRI’s overall mission and goals.  Requests to the Center must be made via its online Amicus Request Form at least 45 days before the requested amicus brief is due (except in extenuating circumstances).  Requests should be made by counsel for the party seeking amicus support.

LCJ:  (Lawyers for Civil Justice):  LCJ’s amicus program is focused on litigation involving amendments to federal rules.  This program is integral to LCJ’s overall mission of supporting reform of procedural rules to further the just, speedy, and inexpensive determination of every action and proceeding.  As amicus curiae, LCJ brings this experience and perspective to bear to support sensible interpretations of civil rules.  These include Fed. R. Evid. 702 (expert witness admissibility), Fed. R. Civ. P. 26(b) (scope and proportionality of discovery); and Fed. R. Civ. P. 37(e) (spoliation of electronic information).  Unlike many amicus organizations, LCJ will participate in important trial court briefing.  LCJ’s submission form is here.  The contact person for making a submission is Alex Dahl (  LCJ requires at least a month before any brief would be due to evaluate a case and arrange for a brief to be written.

MDMA (Medical Device Manufacturers Ass’n):  MDMA is a major trade association for medical device manufacturers, so medical device litigation is the primary focus of its amicus activity. To submit a case for MDMA’s consideration, contact Mark Leahey (  MDMA prefers a month’s notice for any case submission.  There are no forms to fill out; an email with a description of the issue will suffice as an initial submission.  If MDMA needs additional information or documentation, it will inform the submitter.  MDMA has no separate amicus committee, and where necessary uses its board for that function.  MDMA frequently joins other organizations’ amicus briefs.  It helps:  (1) if the client is a MDMA member, and/or (2) the submission includes an offer by an outside lawyer (not, of course, retained by a party) to do the actual writing.

MIWG (Medical Information Working Group):  Since 2006, MIWG has sought clarity in the FDA regulatory scheme for dissemination of truthful and non-misleading information about prescription drugs, biological products and medical devices (that is, First Amendment protection), and to improve the federal regulatory framework and enforcement climate affecting manufacturer dissemination of information regarding those products (including products in development and new uses of marketed products (that is, off-label use)) .  On these issues, MIWG regularly files amicus briefs at all levels of litigation, including federal district, circuit, and Supreme Court levels, as well as making FDA regulatory submissions.  Prior MIWG filings may be viewed here.  Litigants interested in submitting a case for MIWG consideration may contact any of:  Kellie Combs (; Torrey Cope (; Doug Hallward-Driemeier (; and/or Jaime Jones (  No particular format is necessary.

NAM (the National Ass’n of Manufacturers):  The NAM is interested in all issues of broad importance to product manufacturers, tort and product liability litigation among them.  To submit a case for the NAM’s consideration contact Erica Klenicki ( or Michael A. Tilghman II (  The NAM prefers as much time as possible consider a case and prepare a brief, but has no amicus committee and is capable of responding quickly if the case warrants it.  There are no forms to fill out, and the NAM will tell you what documentation it wants.  Although not dispositive, the NAM typically limits amicus participation to cases that will have a significant impact on its members.

PhRMA (Pharmaceutical Research & Manufacturers of America):  PhRMA is the major trade association for the country’s leading innovative biopharmaceutical research companies (non-generic prescription drugs), so the primary focus of its amicus activity concerns cases involving product liability, fraud and abuse, civil justice fairness, antitrust, and intellectual property-related issues that may be of unique concern to the research-based pharmaceutical industry. The contact person for submitting a non-IP related case to PhRMA is Melissa Kimmel ( and for IP-related matters is David Korn (  There are no specific forms to fill out, however, PhRMA appreciates receiving a short memo or letter regarding the request for amicus support that explains the procedural posture of the case, the legal issues involved and the potential significance of the legal questions to PhRMA’s members.  PhRMA appreciates as much lead time as possible to send requests for amicus support through its member vetting process.  Any additional information needed would be  requested on an ad hoc basis.

PLAC (Product Liability Advisory Council):  PLAC’s range of interest extends to any issue that affects the litigation of cases against product producers and sellers.  The contact person for submitting a case to PLAC is Rita McConnell ( or  Submitted cases are considered by a Case Selection Committee that meets the first Thursday of each month.  To be considered, requesting parties must complete PLAC’s Amicus Questionnaire and submit it, along with the documentation requested in the questionnaire, at least ten days before the monthly meeting, and ideally at least six weeks before a brief would be due.  Cases submitted with less than ten days lead time for committee consideration, or less than thirty days before a brief is due, are significantly less likely to be accepted.  PLAC considers requests from both members and non-members but priority is given to member requests. See PLAC’s Amicus FAQs.

United States Chamber of Commerce Litigation Center:  The Chamber’s Litigation Center fights for business and free enterprise in the courts.  It is interested in issues of broad importance to the business community – tort and product liability litigation among them.  To submit a case for the Chamber’s consideration, please fill out this form, and, once completed, email it to  The Litigation Center prefers to receive the opinion being appealed and other relevant briefs. The Litigation Center has its own membership and frequently contacts members when considering whether to file an amicus brief.  As always, it is best to provide as much lead time as possible, ideally at least a month.  Consideration can be expedited if the circumstances demand it.

WLF (Washington Legal Foundation):  Founded in 1977, WLF promotes free enterprise, individual rights, limited government, and the rule of law.  WLF is an active amicus participant, especially at the U.S. Supreme Court and the federal courts of appeals.  To submit an amicus request, contact WLF’s General Counsel and Vice President of Litigation Cory Andrews (  WLF has a Litigation Review Board that approves all amicus work.  While there are no forms to complete, WLF is most receptive to amicus requests that are:  (1) accompanied by a concise amicus memo detailing the case and the legal issues WLF might cover, and (2) received, at minimum, four to six weeks prior to the amicus deadline.  WLF generally avoids participating in business-to-business litigation.  WLF welcomes requests that come with a pro bono offer by an expert attorney (not, of course, retained by a party) to do the actual writing. WLF has no “members” and does not consider possible financial contributions in deciding whether to appear as amicus.

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For design defect claims, a key issue is whether the relevant jurisdiction requires evidence that a suitable alternative design existed that would have allowed the plaintiff to dodge the alleged injury.  This blog has posted at length about alternative design requirements and their nuances.  These posts address everything from the existential question of “What is an alternative design?” to a 50-state survey about the alternative design requirement for negligent design defect claims

But the new news on alternative design is that the West Virginia Supreme Court has decided Shears v. Ethicon, Inc., 2024 W. Va. LEXIS 272, 2024 WL 2932375 (W.Va. June 11, 2024), and definitively held that in West Virginia, a plaintiff cannot prevail on a strict liability design defect claim without proof that an alternative, feasible design, existing at the time the subject product was made, would have substantially reduced the risk of the specific injury suffered by the plaintiff. 

This is a decision that has been a long, long time coming. 

To recap:  More than a decade ago, in 2013, the Shears mesh product liability lawsuit was filed, and made part of an MDL.  See Shears v. Ethicon, Inc., 64 F.4th 556, 559 (4th Cir. 2023).  In 2015, the MDL court consolidated the cases of 37 West Virginia plaintiffs for a single trial under the caption Mullins v. Ethicon, Inc., 117 F. Supp. 3d 810 (S.D. W. Va. 2015). 

As the cases progressed, the MDL court ruled that West Virginia did not require proof of a safer alternative design, then backtracked on that decision in 2016 after “the Supreme Court of Appeals of West Virginia published its West Virginia Pattern Jury Instructions for Civil Cases: Instructions on the Law in Plainer Language (2016 ed.)”.  See Mullins v. Ethicon, Inc., 2016 U.S. Dist. LEXIS 170445, 2016 WL 7197441 (S.D. W. Va. Dec. 9, 2016).

Pattern Instruction § 411 (“Design Defect — Necessity of an Alternative, Feasible Design”) was the key to the course-correction in Mullins.  It provides:

There are many designs which, although they may eliminate a particular risk, are not practicable to produce. To prove that a design is defective, [name of plaintiff] must prove that there was an alternative, feasible design that eliminated the risk that injured [him/her].

Years passed, the MDL slowly chugged along.  In November 2020, the MDL court remanded 9 cases, including Shears, back to their home districts for trial.  For Shears, home was the Northern District of West Virginia.

Eventually the Northern District of West Virginia considered the alternative design issue, in the context of a defense motion to exclude a plaintiffs’ expert.  The expert had opined that there were two alternatives to the design of the “TVT mesh” at issue, namely “polyvinylidene fluoride” and “Ultrapro”, and these alternatives would have reduced—but not eliminated—the risk of injury that plaintiff allegedly experienced.  See Shears v. Ethicon, Inc., 64 F.4th 556, 562 (4th Cir. 2023). 

Understanding Pattern Instruction § 411 as requiring proof of an alternative design that would have eliminated—not just reduced—the risk, the Northern District of West Virginia excluded the expert’s testimony as inapposite to strict liability design defect.

The Shears case then went to trial, and the jury found for the defendant on the sole remaining claim for negligent design defect.[1] (see below).

The plaintiffs’ appeal landed in the Fourth Circuit last year, and the Fourth Circuit was not at all convinced that Pattern Instruction § 411 was a correct statement of West Virginia law regarding alternative design, going so far as to declare:

[W]e are satisfied that “there is no controlling appellate decision, Constitutional provision or statute” of the State of West Virginia that resolves the question of whether Section 411 sets forth a correct statement of law — nor is there sufficient authority that would permit us to reasonably guess how the Supreme Court of Appeals of West Virginia might resolve that question

Shears v. Ethicon, Inc., 64 F.4th 556, 563 (4th Cir. 2023) (emphasis added).

Given that West Virginia’s supreme court had published the pattern instructions, and stated in the preface that “[a]lthough these instructions are not binding, they have gone through multiple edits and revisions after extensive research and editing by the reporters, the review committees, Judge Alsop, and Justice Ketchum,” it is interesting that the Fourth Circuit felt there was insufficient authority for it to even guess at how West Virginia would decide the legal question.  So many times, federal courts happily make expansive Erie guesses based on far less authority (or none at all).

Believing itself to be without guidance for an Erie guess, the Fourth Circuit punted the question to the state, by certifying the issue to the Supreme Court of Appeals of West Virginia.  Bexis was not amused by this turn of events. 

The Fourth Circuit at least was clear in what it wanted:

It is of importance to us, however, that at no point has the Supreme Court of Appeals definitively stated — in a signed, published opinion — “one way or the other whether a design defect claim requires proof of a safer alternative design of the allegedly defective product.”

Which brings us to the present day, and Shears v. Ethicon, Inc., 2024 W. Va. LEXIS 272, 2024 WL 2932375 (W.Va. June 11, 2024).  In it, the Supreme Court of Appeals of West Virginia, more or less, responded:  “Ok, fine, here is your signed, published opinion.  For a strict liability design defect claim, West Virginia law requires proof of the existence of an alternative, feasible product design existing at the time of the subject product’s manufacture.”

Of course, having taken on the certified question, the Supreme Court of Appeals of West Virginia put a finer point on the issue.  The court concluded that Pattern Instruction § 411 did not correctly state the plaintiff’s burden with respect to the alternative design requirement, because the plaintiff must prove the alternative, feasible design “would have substantially reduced the risk of the specific injury suffered by the plaintiff” whereas § 411 required the alternative design to “eliminate the risk.”

Analyzing the risk reduction standard for the proposed alternative design, the court turned to its seminal product liability decision in Morningstar v. Black & Decker Manufacturing Co., 162 W. Va. 857, 253 S.E.2d 666 (1979) and “the general test for establishing strict liability in tort” being “whether the involved product is defective,” meaning “not reasonably safe for its intended use.”

Viewed in the context of an alternative design, this means that an appropriate alternative, feasible design should be, at least, “reasonably safe.” See [Morningstar, 162 W.Va. 857] (holding, in part, that “[t]he standard of reasonable safeness is determined not by the particular manufacturer, but by what a reasonably prudent manufacturer’s standards should have been at the time the product was made.” (emphasis added)). Morningstar‘s use of the term “reasonably” signifies that a product is safe if it meets “fair or sensible standards.”

Because of this “reasonably safe” standard, the plaintiff must have prima facie evidence the alternative design would “substantially reduce” the risk, not just be “safer”:

While some jurisdictions require only that the alternative, feasible design be “safer,” we find this criterion is too vague and does not meet Morningstar’s “reasonably safe” standard for an alternative design. Because a product could be safer than a defective product yet remain defective or “not reasonably safe,” this standard is an ineffective guide for what a reasonably prudent manufacturer should have produced.

Indeed, because West Virginia’s high court concluded that a mere “safer” alternative design was not sufficient, it also rejected the Restatement (Third) of Torts: Prod. Liab. § 2 approach to alternative design as too lax.  The Restatement (Third) of Torts: Prod. Liab. § 2 requires an alternative design that “could have reduced” the foreseeable risks of harm posed by the product.  As a result, Ford Motor Co. v. Tyler, 2023 W. Va. App. LEXIS 337, 2023 WL 8588042 (W.Va. Ct. App. Dec. 8, 2023)—which we discussed at West Virginia Appellate Court Requires Safer Alternative for Negligent Design Defect Claims)—was overruled to the extent it adopted the Restatement’s design defect standard. Thus, West Virginia now indisputably imposes an alternative design element in design defect cases. While not quite as pro-defense as the formulation in the pattern jury instruction, Shears‘ “substantially reduce” standard is more demanding than either the Third Restatement or the alternative design standards of many states, so it is a favorable development overall.

With West Virginia having answered the certified questions posed by the Fourth Circuit, the case returns to federal court for the Fourth Circuit to now decide the still-pending appeal (perhaps after requesting further briefing from the parties). We will keep you posted when they do.

[1] Plaintiffs also put on evidence of a “malfunction” theory of strict liability—in other words, that a malfunction occurred and would not ordinarily have happened in the absence of a defect.  However, because the plaintiffs’ own evidence established that the alleged injury was a known risk of any pelvic surgery involving mesh, it was something that could ordinarily happen regardless of defect, and the trial court granted judgment as a matter of law for the defense on that claim. 

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We are trying hard not to fall into the current fashion of catastrophizing everything.  But the SCOTUS opinion in Mallory might have been the worst recent High Court ruling for corporate defendants.  This blog has spilled a lot of tears and ink on Mallory (including here, here, and here, and several other posts.) Last week, we discussed some post-Mallory developments that might furnish cause for optimism.

In Mallory the Court held that, despite the Court’s decisions in Daimler and BMS limiting personal jurisdiction over corporations, such limitations vanished if a state made acceptance of general personal jurisdiction a condition of a corporation’s registration to do business in that state.  Thus, an employee not a citizen of Pennsylvania, claiming an injury that did not occur in Pennsylvania, could sue his employer, which was not incorporated in Pennsylvania and did not have its principal place of business there — but had registered to do business in Pennsylvania and thereby consented to general jurisdiction, even in a “foreign-cubed” case.  

Pennsylvania is the one state that explicitly imposed that condition on corporate registration.  But if there are other states that want to enliven their decaying downtowns by luring litigation tourists, perhaps we will see widescale replication of the practice.  One shudders.

The Mallory decision was a bolt from the blue.  After the oral argument (we commented on it here), most commentators thought the corporate defendant had the better of the dispute, and that only two of the Justices would side with the plaintiff.  The Pennsylvania courts in the Mallory case had held that the Pennsylvania corporate registration statute was not consistent with the due process analyses in Daimler and BMS, and the smart money was on a High Court affirmance.

The smart money was wrong.  In a strange 5-4 (or 4-1-4) outcome, the court held that Daimler and BMS had not overruled the ancient Pennsylvania Fire (1917) case, which had blessed general jurisdiction by consent.  Never mind that Pennsylvania Fire was from the Pennoyer v. Neff bad old days, and the territorial view of personal jurisdiction was supposedly superseded by the fairness analysis in the International Shoe (1945) case. (The tension between the territorial and due process analyses gave rise to one of the really lame examples of legal humor, as scholars said they waiting for the other International Shoe to drop.)  And never mind that the last couple of court terms have not exactly been marked by fidelity to precedent.  And never mind that the Pennsylvania statute seemed like a classic case of an unconstitutional condition.

Justice Gorsuch authored the majority opinion in Mallory, in which Justices Thomas, Sotomayor, and Jackson joined.  Justice Alito concurred in the result, but wondered whether the consent statute might flunk the dormant commerce clause even if it satisfied due process. Put a pin in that issue.  Justice Barrett wrote the dissent, in which Chief Justice Roberts, and Justices Kagan and Kavanaugh joined.  Note that the voting breakdown does not fit any sort of ideological theme.  Note also that the two Justices who once upon a time taught Civil Procedure (Kagan and Barrett) would have struck down the consent statute.  

This is all old news.  Why are we harping on it today?  Last week a new article visited our inbox: Sachs, Dormant Commerce Clause and Corporate Jurisdiction, 2023 The Supreme Court Review 213 (2024).  Sachs had been an active commentator and blogger (The Volokh Conspiracy) on the Mallory case.  He submitted an amicus brief in the case.  Sachs is considered a prominent conservative/originalist legal scholar.  

We were hoping that the article would furnish support for the dormant commerce clause.   We were disappointed. But perhaps we should not have been surprised.  Originalists are, by and large, not huge fans of the dormant commerce clause.   Sachs pointed out that Justice Alito’s concurrence referred to the “so-called” dormant commerce clause.  Nevertheless, Alito made it pretty clear that he thought the Pennsylvania statute would flunk the Pike v. Bruce Church balancing test for the dormant commerce clause.  Pennsylvania simply had no legitimate interest in having its courts resolve disputes between two non-citizens over a matter having nothing to do with Pennsylvania.

We are not blind to the fact that the most recent SCOTUS pronouncement on the dormant commerce clause, National Pork Producers Council v. Ross, 598 U.S. —, 2023 WL 3356528 (U.S. May 11, 2023), rejected application of the clause.  That case upheld California humane animal husbandry rules even those rules imposed enormous costs on pork producers outside of California due to the great difficulty in segregating pork products sold in one large state.  Like Mallory, National Pork Producers had multiple opinions (five), with Justice Gorsuch authoring the controlling opinion.  The Court held that significant extraterritorial impacts of state law do not invalidate the law without proof of an intent to discriminate against out-of-state economic interests to the advantage of in-state interests. In National Pork Producers, there was no such discrimination.  The plurality opinion also suggested that the compliance costs of revamping pork production were insufficient to require a court to weigh those costs against the moral benefits California voters wanted via mandating humane animal husbandry.

But at least California would realize such benefits.  What is the benefit to Pennsylvania of dragging in foreign corporations on foreign matters?  Maybe some lawyers and court personnel would enjoy the heightened local litigation activity, but from the perspective of the state overall, clogging the court system cannot be a net plus.  

Sachs looks at the Mallory ruling and its implications in a different way.  He sees Mallory as a triumph of “very old doctrines of personal jurisdiction,” and a coda to the tug of war between territorial and due process analyses that resulted in “a complex and contradictory body of case law.”  Well, we have to agree with that, having felt that way since we first read Pennoyer and International Shoe back in our first year of law school.  Personal jurisdiction law, particularly with respect to corporations, has long been a mess.  But Daimler and BMS were clear, consistent rules, appearing to rescue us from the mess.  

If all that Sachs said was that corporate personal jurisdiction law was sloppy, we’d nod our head in agreement and move on with things.   But Sachs goes on to examine the “Dormant Commerce Clause on Original Grounds.”  The “Founding-era picture was that corporations had no right of their own to operate in other states.”  They needed permission from other states, and those other states could impose conditions. The notion was that a corporation carried on activities in a state only by grace of that state’s permission. Then as corporations became more important in carrying on interstate commerce, they claimed greater rights (even though they lacked the privileges guaranteed to citizens under Article IV), and the dormant commerce clause carried the day, “rendering incoherent both the theory and practice of corporate jurisdiction.” It’s sort of a materialist (though not Marxist) account. It’s also radical.  (Remember that Sachs has also argued against Erie v. Tompkins.) The consent theory got stomped on by International Shoe.  SCOTUS “began to phrase its theory in terms of ‘presence’ or ‘doing business’ rather than ‘consent.’”

So Sachs sees modern corporate jurisdiction doctrine as a mess, mostly wrought by International Shoe.  He seems to think that the consent theory was closer to the original understanding (and he repeats that “the Constitution has no corporate law”).  His conclusion is that until Congress gives corporations the right to operate in other states, “or until it mandates mutual recognition of corporate privileges, these powers are still ‘reserved to the States respectively’ — right where the Constitution left them.”

For the moment we’ll take a pass on whether Sachs’s application of originalism is correct or whether it shows the problems with that approach.  Let’s instead seize on his suggestion that there might be legislative solutions available to the corporate jurisdiction mess (created by Mallory, not International Shoe).  First, state legislatures should not pass corporate registration statutes that impose consent to jurisdiction.  Look at court budgets   Consider whether it is fair or wise to turn one’s state into a litigation hellhole.  Second, Congress could step in and put an end to corporate registration that extracts phony consents to jurisdiction.  But even as we propose these solutions, we feel the futility.  Many important court opinions come down to, ‘Congress, do your job.’  Think about the recent bump-stock decision.  The problem is that Congress hardly ever does its job.  Even the most enlightened legislation rationalizing corporate interstate activities would be buried under demagoguery and trial lawyer campaign contributions.  

And so we continue to litigate, pushing jurisprudential boulders up steep hills.

Sachs’s article is interesting.  It is insightful.  It might even be brilliant.  What it is not is useful.