Picture this. Invitations go out for a Thanksgiving get-together and the host and expected guests together sort out who will bring what foods and how everything will be served. A sideboard is loaded up with the traditional holiday foods, along with a collection of everyone’s quirky favorite salad items to allow easy compilation of a guest-specific salad. Most of the guests arrive on time and eat their fill. The host fulfills her function with efficient seating, intercession in minor squabbles, and ample beverages. Like Thor’s goats, the traditional holiday foods magically replenish no matter how many guests have sampled them. Sated guests have retired to watch more football. In short, the gathering was as a Thanksgiving should be. Then, a guest appears at the door, is invited in, and directed toward to the sideboard with instructions on how to help herself, how to find a seat, and how to find beverages. The late-to-the-party guest says this arrangement is insufficient. She wants a plate prepared just for her, including both the general and guest-specific foods she contends the host should know how to pick for her, and brought to her at her preferred seat, which is on the sofa rather than the dining room table where everyone else ate. Mind you, she could have prepared her own plate and sat at the table, but she insists that a host must give her special treatment because she would not have had to prepare her own plate had she dined solo at a sit-down restaurant (excluding buffets and smorgasbords). Undoubtedly, this guest is being a jive turkey, if not an insufferable pig.

We think the plaintiff’s position in Williams v. Biomet, Inc., No. 3:18cv00211RLM-MGG, 2019 U.S. Dist. LEXIS 199802 (N.D. Ind. Nov. 15, 2019), is much like that of the boorish guest above. Her suit was transferred to the M2a hip implant MDL about six years after it was established and more than two years after generic discovery closed. (We have chimed in on a few decisions from this MDL over the years. See here.) The MDL had in place a vendor for easy access to documents produced by the defendants and a system for case-specific discovery that built on a Defendant Fact Sheet and production of specified case-specific documents. Rather than go forward with the typical case-specific depositions of the plaintiff, a treating surgeon, and one of defendant’s sales representatives, the plaintiff moved to compel the defendant to answer her written discovery in the way she wanted. She did not want to obtain generic or case-specific information from the MDL plaintiffs’ leadership or the third-party vendor selected by the parties years before. No, she wanted everything on a silver platter.

As to this issue, the court was not sympathetic to plaintiffs’ high maintenance demands. It noted that this motion to compel was brought after “[h]undreds of cases already have been remanded or transferred to other courts for trial, with all parties and courts understanding that most case-specific, and all non-case-specific discovery (also described as ‘general’ and ‘generic’ in past orders), has been completed in the MDL court.” Id. at *7. The defendant had “produced millions of documents and custodian-deponents early in the docket’s life”; these were available through the plaintiffs’ leadership, as was the complaint file on each plaintiff. Id. Medical records gathered on each plaintiff were available through the agreed vendor “on the same terms the records are available to [defendant].” Id. at *8. In responding to plaintiffs’ written discovery, defendant directed plaintiff to those sources, as it presumably had in hundreds of other cases in the MDL. “Ms. Williams contends that isn’t good enough, that [defendant] must produce the requested information and documents to her counsel rather than simply point her to a bucket full of discovery.” Id. Of course, this is an MDL and an MDL is supposed to promote efficient and non-repetitive discovery. We have described many issues we take with the general pro-plaintiff, pro-settlement slant in many modern MDLs, like here, here, and here, but we certainly agree with this foregoing principle and its application here.

Defendant’s approach did not deprive plaintiff of access to general or case-specific discovery or place an undue burden on her.

Biomet produced hundreds of thousands of documents in electronic form to Record Trak for the Plaintiffs’ Steering Committee, which serves as a stand-in for each plaintiff for purposes of receipt of discovery materials. The files are readily searchable. Ms. Williams says she shouldn’t have to conduct that search (which carries a cost as well as a risk that her search would miss documents pertinent to her case) because the rules of procedure place that burden on Biomet. If she’s right, a defendant in a mass tort MDL would have to search through the same electronic files thousands of times to narrow the pile of files down to those relating to a given plaintiff. Or Ms. Williams must conduct the search, but only once. Ms. Williams’s argument would defeat one of the main efficiencies of the MDL process.

Id. at *9. So, she basically gets what everyone else gets. Coming in late and asking for special treatment “just because” are not good reasons for deviating from the existing, established procedure. Any defendant in an MDL or state coordinated proceeding can appreciate this dynamic, and, while it might be nice to say a picky plaintiff should get nothing and like it, keeping the sideboard open for the late-arriving guests is better than having to make up a bunch of ad hoc plates of discovery for them.

Enjoy your giving of thanks and partaking of gluttony.

A couple of years ago, we were overjoyed to learn that our very favorite old-fashioned Broadway musical was being revived. The lead role – a famously brassy female character – was being played by a famously brassy singer and sometime-actress we believed was perfectly cast.   We bought tickets the day they went on sale, and we saw the show nearly as soon as it opened.   We could feel our excitement building at the swell of the first chords of the overture and at our first view of the Candy Land colors of the old-school set and costumes.   There was no place in the world we’d rather have been at that moment . . . and we were sorely disappointed. We thought the lead actress – notoriously bawdy and broad – played the role in much too “small” a fashion. The male lead was completely miscast. Inexplicable cuts had trimmed the best finale ever written to a mere footnote. And, once again, we were reminded that too-high expectation expectations beg to be dashed.

As they were in today’s case.  We really liked the first half of In re Biomet M2a Magnum Hip Implant Prods. Liab. Litig., 2017 WL 10845178 (N.D. Ind. Dec. 21. 2017), an older decision that inexplicably just appeared in our weekly search.  The judge in the metal-on-metal hip implant litigation was asked to decide Daubert motions filed by both sides.  He started with the plaintiffs’ motions to exclude five of the defendants’ experts.   First, the plaintiffs moved to exclude the opinions of the defendants’ mechanical engineering expert, a mechanical engineer and professor of tribology (the science of friction, wear, and lubrication – who knew??) related to the “reasonableness” of the defendant’s “design and safety decision-making,” Biomet, 2017 WL 10845178 at *2.   The court denied the motion, explaining that the expert’s opinions were based on his review of “a large design file,” which met “Rule 702’s threshold requirement that an opinion be based on sufficient facts or data.” Id. at *3. The defendant argued that the expert’s “reasonableness” opinions were based on his review of “relevant literature, depositions, and [the defendant’s] design files for the devices at issue in this case.” Id. at *3. The court held that the files the expert reviewed met “Rule 702’s threshold requirement that an opinion be based on sufficient facts or data,” id. at *4, and that questions about other documents he could have considered were appropriately left for cross-examination.

Second, the judge considered the plaintiffs’ motion to exclude two categories of opinions of the defendant’s biomaterials expert. The judge held that the expert was not qualified to offer “sweeping” opinions about regulatory compliance but that he could offer opinions about the defendants’ compliance with regulatory requirements to the extent that such compliance played a role in the development of the devices at issue. The judge denied the motion to exclude the expert’s general opinions about factors surgeons consider in selecting a hip implant device.

Third, the plaintiffs moved to exclude the testimony of the defendant’s regulatory expert on issues related to the 510(k) clearance process. The plaintiffs argued that: 1) they did not contend that the defendant violated the 510(k) process and regulatory compliance was a question of law an expert could not resolve; 2) the expert’s opinion that the 510(k) process considers safety and effectiveness in addition to “substantial compliance: was contrary to FDA statutory and regulatory authority; and 3) evidence of 510(k) clearance was more prejudicial than probative.   Id. at *5. The court explained the split of authority on the admission of testimony about 510(k) clearance, then held that it would be premature for the court to rule on the admissibility of the expert’s testimony on a litigation-wide basis at the MDL level.   Instead, the court held, resolution of the motion fell into the category of state-law determinations that should be made on remand to transferor courts.

Fourth, the Plaintiffs moved to exclude the testimony of the defendant’s orthopedic surgeon/joint replacement specialist. The defendant offered the expert to testify about, “among other things, the rationale for second generation metal-on-metal devices.” Id. at *8. The plaintiffs moved to exclude the expert’s opinions on tribology, offering that he was unqualified to offer them. The court explained that the expert’s opinions on “allegedly improved tribological characteristics of the second-generation metal-on-metal implants” were admissible to the extent that “they [were] the type on which an orthopedic surgeon would commonly rely.” Id.   But, the court emphasized, the expert couldn’t “take the place of a tribology expert and offer opinions beyond those on which an orthopedic surgeon would commonly rely.” Id. As such, the court granted the motion to the extent that the expert was attempting to testify as a tribology expert and denied it to the extent that an orthopedic surgeon would reasonably rely on the opinions.

Finally, the defendant offered a biomedical engineer to testify about its testing of the hip implant device. The plaintiffs sought to exclude the expert’s conclusion that: 1) the defendant’s postmarket surveillance and use of the information it obtained were appropriate; and 2) the defendant “reviewed information in peer-reviewed journals concerning clinical experience with [its] devices and appropriately applied any new knowledge that was acquired” in assessing the products’ long-term safety and efficacy.   Id. at *9. The plaintiffs argued that the expert lacked the specialized training or experience that would qualify him to offer these opinions, including training or experience with FDA regulatory procedures, that the expert did not employ a sound methodology, and that the defendant did not need an expert to testify to the fact of post-market surveillance. The court disagreed, noting that the expert’s field was hip device wear testing and holding that his qualifications in analyzing data form those tests qualified him to analyze data from post-market testing and reports. The court rejected the “unreliable methodology” argument, holding that the expert’s opinions were admissible because they were “reasoned, use[d] the methods of [his] discipline, and [were] founded on data.”   Id.   The court excluded a single opinion offered by the expert – the opinion that metal-on-metal revision rates might be artificially high because of heightened scrutiny of the devices, finding that the theory was not supported by any of Daubert’s indicia of scientific reliability – the theory was not tested, peer-reviewed, evaluated for error rates, or accepted within the scientific community.

The Defendant’s Motions to Exclude the Plaintiff’s Experts

By this point in the decision, we hoped that the judge’s denial of the vast majority of the plaintiffs’ motions signaled a pro-defense approach that would translate into exclusion of the plaintiffs’ experts. By and large, this was not to be.

The court first considered the defendant’s motion to exclude the plaintiffs’ biomedical engineering expert, who offered the opinions that: 1) the defendant’s products were defective; 2) metal-on-polyethylene implants were a safer, feasible alternative design; 3) the defendant’s testing of its devices was inadequate; 4) the defendant’s warnings were inadequate; 5) the defendant downplayed the risks of the devices; and 6) excessive metal ions produced by metal-on-metal devices cause clinical effects in patients.   The defendant moved to exclude all of the opinions.

First, the defendant argued that the expert was not qualified to offer the opinion that all metal-on-metal devices are defectively designed. The court denied the motion, holding that the expert’s experience as an engineer qualified her to opine on the design issues even though her degrees were in mechanical engineering and not tribology. Next, the court held that the expert could testify to her proposed “alternative design,” and that omissions in the information she considered were appropriately reserved for cross-examination. The court found that the expert was qualified to opine about the adequacy of the defendant’s testing, notwithstanding her lack of training in tribology, and that she employed a reliable methodology in formulating those opinions when she “examined the testing [the defendant] conducted and pointed to other testing employed in peer-reviewed studies.”

With respect to the expert’s “inadequate warnings” opinions, the court held that the expert’s experience “developing and reviewing warnings for orthopedic products” qualified her to offer the opinions, notwithstanding the fact that she was not an orthopedic surgeon and had no medical training. The court also held that the expert employed a reliable methodology when she “compared [the defendant’s] warnings with relevant research on the alleged risks associated with metal-on-metal devices and opined on what additional warnings were necessary based on the deficiencies she found,” even though she did not “explain whether and how additional warnings would have affected a surgeon’s decisions” and did not “test her theories through studies or other mechanisms.” Id. at *13.

Finally, the court held that the expert could not testify “as an expert on the clinical effects of metal ions” but could “permissibly rely on other experts’ opinions that metal ions cause clinical effects to support her opinion that metal-on-metal devices [were] unreasonably dangerous.” Id. at *15.

The plaintiffs’ second expert was an orthopedic surgeon specializing in joint replacement. Like the first expert, he offered opinions that the defendant’s devices, and metal-on-metal devices generally, were defectively designed and that the defendant’s testing and instructions for use were inadequate.

The defendant argued that the expert was not qualified to offer his design opinions because he had no training in tribology. The court rejected this argument, explaining, “While [the expert] discusses issues that arguably fall within the field of tribology, . . . Rule 703 allows an orthopedic surgeon to reasonably rely on the opinions of other experts.” Id. at *16. The court held that the expert permissibly relied on the expertise of others when his opinions required knowledge outside of his own field of expertise, and that that he employed reliable methodology in arriving at his general opinions about metal-on-metal devices. The court did exclude the expert’s specific opinions about the design of the defendant’s devices, holding that he had not considered sufficient device-specific data in developing these opinions. The court also excluded the expert’s opinion that the defendant’s testing of its devices was inadequate because he had not conducted a sufficient review of the relevant testing data.   But the expert was permitted to testify about the adequacy of the defendant’s instructions for use because he “compared the facts in evidence with the content shown” in the instructions for use.   Id. at *18.

So while the judge excluded an opinion here and there, he admitted most of the plaintiffs’ experts’ opinions.  Call us biased, but we thought that the judge’s analysis of the defendant’s experts’ opinions was mostly quite strong but that he stretched too far in allowing the plaintiffs’ experts to testify far outside of their fields of expertise and to offer opinions that were the products of questionable methodologies.  No great surprise there.  But hope springs eternal, and we will continue to watch for the “good” while we report on the “bad” and the “ugly.”

Congress authorized multidistrict litigation “for the convenience of parties and witnesses” and to “promote the just and efficient conduct of such actions.”  28 U.S.C. §1407(a).  As we’ve documented in many posts in our MDL topic, the reality – at least in product liability mass torts involving prescription medical products – is so far from what Congress intended as to call the entire process into question.

Instead of convenience, we see the Rules of Civil Procedure being ignored on a massive scale to deprive defendants of motions practice, to postpone “case specific” defenses, and to force defendants not only to provide massive discovery of their own information, but also to shoulder discovery burdens, such as collection of medical records, that should be the plaintiffs’ responsibility.

Instead of “just and efficient conduct,” we see thousands of plaintiffs with weak to nonexistent cases parking themselves for years with no merits examination, while plaintiffs’ best cases are litigated in consolidated “bellwether” trials” (despite the statute limiting MDLs to “pretrial” proceedings) with legal and evidentiary rulings designed to produce huge verdicts that force defendants to settle, including all those weak cases that, without the MDL, would never have been filed in the first place.

Here are two more recent examples of MDL dysfunction.

In In re Biomet M2a Magnum Hip Implant Products Liability Litigation, 2019 WL 110892 (N.D. Ind. Jan. 3, 2019), the defendant brought the kind of case-specific dispositive motion that, outside of an MDL in all likelihood would have disposed of the cases. The defendant sought “summary judgment based on North Carolina’s repealed statute of repose” against seven North Carolina plaintiffs.  Id. at *1.  In the MDL, however, this case-specific motion was denied on the basis of not wanting to bother to figure out the law:

Early on in this multi-district litigation docket, I told the parties that I intended to leave sticky questions of state law to the courts that would try the cases, reasoning that those courts were more familiar than I with the governing law.  My second concern was the delay that would affect all cases in the docket as I tried to get up to speed on the laws and doctrines of each state involved in these proceedings.  After fulfilling my own prediction about delay on this motion, I have concluded that these North Carolina cases present issues that are best decided by courts more familiar than I with North Carolina law.

Id.  Talk about a government shutdown – all defense motions based on state law are selectively shut down in this MDL.  Thus, seven cases that, in the absence of MDL litigation, may well have been dismissed within weeks of being filed, instead survive to be parked in the MDL for who knows how long – probably until the pressure of numbers (including many other cases with “motion denied because I can’t be bothered” rulings) forces a settlement.

If “[a] federal district court sitting in North Carolina has a much better chance than I of getting the answer to this question right,” id. at *6, then by all means remand the cases right now.  It’s neither “convenient,” “just”, nor “efficient” to let likely meritless cases persist – and to force both sides, but particularly defendants – to expend time and effort on them – when without an MDL, this kind of excuse for refusal to decide a duly filed motion would never even be offered (short of exotic doctrines like abstention or certification of an issue to a state appellate court).  If it is too difficult, well, nobody forces courts to accept MDL assignments.

The second case, Weidenhof v. Zimmer, Inc., 2018 WL 7106980 (M.D. Pa. Dec. 28, 2018), demonstrates MDL-caused dysfunction at the other end of the litigation cycle – when all those meritless cases that have been flying under the radar in MDLs finally have to be dealt with.

Weidenhof was a solicited case that never belonged in the Zimmer Nexgen MDL at all.  This plaintiff had knee surgery in 2009 with a different device than those at issue in Nexgen.  Nonetheless, plaintiffs (husband and wife) “hired two law firms who filed a complaint on his behalf in 2012 in the Eastern District [of Pennsylvania].”  2018 WL 7106980, at *1.  That filing occurred on April 13, 2012.  Id.  “His case was transferred to a multi-district litigation court.”  Id.

Thereafter, Weidenhof sat parked in the MDL for two years with nothing happening – not even the most basic step of product identification.  The MDL defendants had to do the plaintiffs’ Rule 11 job for them, the investigation of such a basic legal requirement.  See Id. at *2 (“On July 1, 2014, Defendants filed a Motion requesting that the MDL Judge issue a Suggestion of Remand because the devices implanted in Mr. Weidenhof’s knee did not fall within the scope of the MDL Panel’s August 2011 Transfer Order.”).

No wonder there is a current proposal, which we support, to require all MDL plaintiffs affirmatively to establish product identification within 60 days.

In any event, in Weidenhof, “[a]fter two years his case was remanded because the artificial knee he had was not one of the products in the MDL case.”  Id. at *1.  “On October 24, 2014, Plaintiffs’ case was transferred back to its originating district, the Eastern District of Pennsylvania.”  Id. at *2.

Those two law firms that the plaintiffs euphemistically “hired” – were they ready to litigate their client’s case?

Of course not.  They were just soliciting MDL plaintiffs; they had no intention of doing any actual litigation.  Thus, after another eight months of nothing passed, “[o]n June 17, 2015, Plaintiffs’ counsel filed a Petition for Leave to Withdraw as Counsel,” and “[o]n August 3, 2015, the Petition was granted.”  Id.  The transferor court in the Eastern District of Pennsylvania thus was left with the task of correcting another of plaintiffs’ ex-counsel’s screw ups – improper venue.  “On October 14, 2016, the District Court in the Eastern District of Pennsylvania entered an Order transferring Plaintiffs’ case to the Middle District of Pennsylvania,” where it belonged.  Id.

Because of Weidenhof’s sojourn in the MDL, it thus took four years even to get this MDL-solicited case into the right court and suing over the right product – but without any lawyer willing to represent plaintiff when actual litigation was required.  The MDL master complaint, which Weidenhof had incorporated, being no longer applicable, plaintiffs were directed to file an amended complaint on February 6, 2017, almost five years after this litigation began.  Id.  That “complaint” (if it can be called that), was filed on March 7, 2017, and “in its entirety, provided ‘Knee Replacement 3-09-2009 OIP Orthopedics Camp Hill, PA 17074.  Product used was Bad Product.  Caused Permanent Disability.’”

In their statement of the amount in controversy, Plaintiffs appeared to request monetary damages in an amount of no less than $200,000.00 for pain and suffering.  In the relief section of their Amended Complaint, however, Plaintiffs assert that, “Pain and suffering will always be an issue!  And may lose medical if awarded money from the Court.  Also don’t know if disability money will continue or not.”

Id.

Defendant – well beyond the point of having enough of this garbage – moved to dismiss on April 7, 2017.  Id. at *3.  The court granted the motion on March 27, 2018, after delaying for nearly a year, but even then allowed the pro se plaintiffs a chance to file a proper complaint.  Id.  Of course, they missed the deadline; so they got yet another chance.  Finally, on June 4, 2018, they filed something that, at least was properly signed.  Id.

Defendant again moved to dismiss.  After now six years of litigation, plaintiffs didn’t even bother opposing the motion.  Id. at *5 (plaintiffs “failed to timely oppose the motion, or otherwise litigate this case.  This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion”).  Because plaintiffs had “repeatedly breached,” id. at *6, just about every applicable rule, the amended complaint was finally dismissed with prejudice.

[T]his case has been before five federal judges in three judicial districts.  In this instance, however, the procedural complexities do not negate Plaintiff’s personal responsibility in failing to prosecute.  Throughout this case, Plaintiff has been shown significant lenience appropriate for a party proceeding pro se. . . .  But despite efforts by the court to show flexibility, Plaintiff only intermittently complied with court orders issued by the Eastern District and by me.

Id. at *7.  Nor was there any meritorious claim asserted.

Plaintiff alleges no facts that would support a finding that Defendants’ conduct breached a duty . . . .  Rather, Plaintiff alleges he suffered for three years, not necessarily because of a product defect, but because “no doctor would revise the product” “[d]ue to the legal litigation against Zimmer Inc.

Id. at *13 (emphasis added).  So what plaintiffs were really complaining about – after six years of litigation – was that no physician was willing to treat the plaintiff because they were deterred by “the legal litigation.”  In other words, plaintiffs ended up alleging that they were injured by the MDL itself and the surrounding solicitation, not by the defendant’s product.

Weidenhof, in and of itself, is not all that important, but it raises the question of how much legal flotsam and jetsam is floating around the federal courts because of all the meritless filings generated by blunderbuss MDL-related attorney solicitation.  Somebody has to pay to clean up these messes, and it’s certainly not been the plaintiffs’ lawyers who engage in all these indiscriminate filings.  As in Weidenhof, they jump ship at the first sign of actual work to be done.  Weidenhof was in litigation since 2012 – six years, over the wrong product − and when all was said and done, the litigation itself had harmed plaintiffs more than the original product.  What a waste of time and effort.

Together, Biomet M2a Magnum Hip and Weidenhof demonstrate that, from beginning to end, the MDL system as it currently exists (at least in prescription medical product litigation) is shot through with inefficiency, one-sided practices, waste, delay, and client abandonment, all of which prejudice defendants and make a mockery of the original premises of the MDL statute.  We believe that the current proposals for MDL reform would be beneficial, but we have to consider that the current system may well be broken beyond any repair that civil rules changes could make.  What is really needed – with a current likelihood of about zero percent – is a thoroughgoing Congressional revision of the MDL statute itself.

That part of this title is borrowed from a fellow blogger’s post does not at all detract from its fundamental truth.  Attention to personal jurisdiction wins cases – particularly in MDLs in which lawyers are out there recruiting clients, rather than the other way around.  The latest example is In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2019 WL 121199 (E.D. Pa. Jan. 7, 2019).  Zostavax also underscores why a case we recently discussed, In re Biomet M2A Magnum Hip Implant Products Liability Litigation, ___ F. Supp.3d ___, 2018 WL 6426830 (JPML Dec. 6, 2018), is significant.

Zostavax is not one of your typical litigation tourist MDL cases.  Both of the two plaintiffs, whose cases were ultimately dismissed, were residents of the forum in which they initially brought suit – Florida.  However, indicative of how lawyer solicitation scrapes the bottom of the barrel in MDLs, both plaintiffs had used the product quite a few years earlier before they (probably retired and) moved to Florida.  One plaintiff used the product in July, 2011, and the other a year later in July 2012.  Zostavax, 2019 WL 121199, at *1.  Suit was not filed until 2018, according to the docket numbers.

No basis existed to subject the defendant to general jurisdiction in Florida, id. at *3, and since the plaintiffs both took the product and were diagnosed with their alleged injuries before they moved to Florida, neither did the facts support specific, case-linked jurisdiction in the state.  “For purposes of personal jurisdiction, we must look to the place where the injury occurred, not to the place where it was diagnosed.”  Zostavax, 2019 WL 121199, at *4.  Rather:

The relevant activity or occurrence with respect to [the first plaintiff] took place in Edgartown, Massachusetts when she received the [product].  The relevant activity or occurrence with respect to [the second plaintiff] took place in Connecticut where she was injected with [the product].  The torts which allegedly caused their injuries happened in places other than Florida.  While plaintiffs were long-time residents of Florida, [defendant] did nothing to and had no interaction with either of them in that state.  [Defendant] was not at home in Florida, and plaintiffs’ injuries did not arise out of and were not related to any contact it had with Florida, regardless of what [defendant’s] other activities in the state may have been.

Id..  That’s straight out of BMS – where the product did not injure the plaintiff in the forum state, no matter how extensive the defendant’s non-case-related in-state activities are, they cannot establish specific jurisdiction.  You’ll have to go somewhere else.

Nor does personal Jurisdiction turn on how “convenient” the forum might be:

Florida’s power does not extend to [defendant] in these actions even if Florida would be a convenient place for plaintiffs to sue and would not be inconvenient or burdensome to large corporations such as defendants.

Id.

Zostavax underscores a jurisdictional point defendants need to keep in mind.  Personal jurisdiction motions are not limited to litigation tourists.  Once Bauman took out the old notion of general jurisdiction everywhere a major corporation did business, plaintiffs either have to sue corporate defendants where they are “at home” or where they can obtain specific jurisdiction.  Specific jurisdiction is necessarily quite commonly where the plaintiff resides – but not always.  Plaintiffs who change their states of residence in between injury and filing suit can create, as in Zostavax, jurisdictional problems for themselves.  In these non-litigation-tourism cases, defendants might choose to waive the jurisdictional defect.  However, in prescription medical product cases, where the “learned intermediary” prescriber is often the most important witness, such a waiver can create discovery problems for defendants (can’t subpoena the prescriber), so there is good reason to stand on a valid jurisdictional defense.

Equally interesting is the discussion about what happens once the absence of personal jurisdiction is established.  In Zostavax, plaintiffs alternatively sought a transfer.

Denied.  Cases dismissed.

Why?  That involves the issue decided in the Biomet M2A Magnum case we discussed previously.  That case established that an MDL judge can only remand cases to the courts from which they were originally filed.  Zostavax, 2019 WL 121199, at *5.  MDL courts are “preclude[d] . . . from transferring a case to any other district, whether under §1404(a), §1406(a) or §1631.”  Id. (citing various statutes allowing transfer in various circumstances).  This means that if an MDL plaintiff’s initial filing is in a court without personal jurisdiction, it’s curtains.  The action must be dismissed, because it cannot be remanded to the transferor court – because cases can’t be sent to a court that was just determined to lack jurisdiction – nor can they be transferred anywhere else, given the terms of the MDL statute.

If the case (as in Zostavax) has to be dismissed, then see our post here about savings statutes.  In some states the MDL dismissal may bar the claim from being refiled under the applicable statute of limitations.

Finally, the transfer discussion points out another consequence of Bauman/BMS personal jurisdiction:  in some cases, plaintiffs simply might not be able to join all the defendants they want to in the same lawsuit:

[T]here does not appear to be any one forum where general jurisdiction could be exercised over all defendants.  As to specific jurisdiction, there is nothing in the record pointing to any ties between causation of plaintiffs’ injuries in Massachusetts and Connecticut and any activity of [the non-moving defendant] in those states.  In sum, the court is not able to determine . . . in what district or districts, if any, either of these actions could have been brought at the time they were filed.

Zostavax, 2019 WL 121199, at *5.

If you’ve ever wondered why so many of the post-Bauman personal jurisdiction cases have involved asbestos plaintiffs, this is why.  The Bauman/BMS personal jurisdiction regime is fatal to asbestos litigation tourists (or plaintiffs who, like the plaintiffs in Zostavax, just didn’t sue where they were injured) because without “case-linked” personal jurisdiction tied to the place of injury it’s impossible to obtain jurisdiction over scores of unrelated corporations.  Because we (at least Bexis) also dabble in asbestos litigation, we’re careful to specify in our cheat sheet which cases involve asbestos.

Zostavax demonstrates that blanket personal jurisdiction can also be impossible for litigation tourists in prescription medical product MDLs.  Multiple defendants – be they physicians, hospitals, distributors, affiliates, whatever – may well not be amenable to personal jurisdiction in the same forum, unless the plaintiff sues where s/he allegedly was injured.  There’s now a real downside to litigation tourism, in that cases can be dismissed without ability to refile.  To us, that’s the most interesting aspect of Zostavax:  judicial recognition that in multi-defendant cases, litigation tourism itself may not be possible.

You can waive remand.  That’s Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).  But, if you agree to remand, you’re going back whence you came.  So said the Judicial Panel on Multidistrict Litigation earlier this month in In re: Biomet M2A Magnum Hip Implant Products Liability Litigation, 2018 WL 6426830 (JPML Dec. 6, 2018).

That’s pretty much all the 4-paragraph opinion says on this issue of first impression.  The JPML cannot “redirect the remand” to a non-originating court.  What the opinion doesn’t tell is why the request was being made in the first place.  So, we did a little digging.  At issue were three cases selected for remand from this MDL.  The Chadwick case had been originally filed in state court in New Jersey and subsequently removed to federal court.  Plaintiffs included as a defendant a company whose sole role in relation to the device at issue was to supply raw materials.  That company, a New Jersey company, was the only thing establishing venue in New Jersey.  Memo. Of Law in Support of Motion of Defs. To Vacate Conditional Remand Order, No. TXS/4:14-cv-00232, Dkt. No. 12-1 (JPML), at 2-3.  Plaintiff is a resident of Wyoming and Biomet is an Indiana company.  The New Jersey defendant filed a motion to dismiss based on the immunity afforded raw material suppliers under the Biomaterials Access Assurance Act (“BAAA”).  Feels like the New Jersey company was present simply to allow some forum shopping by plaintiff.  Prior to remand, however, plaintiff agreed to dismiss the raw material supplier and with that dismissed the only link to New Jersey.  Id.

The second case, Carter, was filed in the Southern District of New York before being transferred to the MDL.    Plaintiff Carter, however, lived in Virginia and had surgeries in Virginia and North Carolina.  Her complaint does not include any allegation why venue would be appropriate in New York.  Id. at 3-4.  Similarly, the plaintiff in the Richards case filed suit in the Southern District of Texas, but she resides and had surgery in cities that fall in the Northern District of Texas.  Id. at 4.

At the time of remand, the MDL judge was willing to grant the parties’ request that these three cases be transferred to appropriate venues that were not their originating courts.  However, in the suggestion of remand, the judge concluded that he had no authority to grant the relief requested by the parties and listed the remand jurisdiction for each case as the original transferor courts.  Id. at 5.

Defendants argued that the logic of Lexecon should apply.  In effect, that there was no difference between waiving remand to the transferor court to allow trial to take place in the MDL and waiving remand to the transferor court to allow trial to take place in a different, but appropriate venue.  Id. at 6.  Defendants also made the points that denying the request now was simply inefficient because they would file change of venue motions post-remand that were highly likely to succeed and that at least as to New Jersey and New York there were also personal jurisdiction issues.  Residents of Wyoming and Virginia were suing Indiana companies in New Jersey and New York.  And that hasn’t been allowed since Daimler AG v. Bauman, 571 U.S. 117 (2014).

But the JPML was unpersuaded finding that the statute, 28 U.S.C. § 1407(a), afforded it “no discretion.”  The only remand destination allowed is the original transferor court, even if the parties agree that jurisdiction is improper.  In re: Biomet, at *1. 

So, other than this now being the rule of law, to us it is also indicative that Congress did not contemplate the current forum shopping practices.  Cases should be remanded from where they came because they should have been filed in appropriate jurisdictions from the outset.  But, we know that’s not the reality.  We are optimistic that the issue will be resolved correctly post-remand, but where venue is so clearly not present, we don’t see the harm in arming the JPML with the tools to get the job done.

Predictive coding (also called “technology assisted review” (“TAR”)) involves the use of computerized artificial intelligence to extrapolate from attorney coding of small (and repeated) sample document sets ultimately to govern huge document productions. This technology has appeared (to us) probably the most promising development in discovery since that subject went electronic … and promptly ran badly off the rails due to exorbitant cost. Nothing else we know of – short of significantly tighter legal limits on discovery − has the promise of reducing ediscovery costs to the extent that predictive coding can. Thus, we’ve blogged about it several times since 2012, when the first cases contemplating its use were decided.

But we haven’t said much recently.

Eighteen months can be forever on the technological frontier, so we decided to take another look at the case law to see what had happened to predictive coding since the first three cases in 2012.

The case law has exploded. Where only a handful of cases existed back then, now we find dozens. Substantively, we’re happy to report that courts don’t seem to have anything bad to say about using computers to undertake relevance review for documents subject to production in litigation.

Continue Reading Courts Have Nothing But Good Things To Say About Predictive Coding

Let’s see whether it works: Discovery!  Are you excited?  How about this: Technology Assisted Review!!  Nothing yet? How about: Predictive Coding!!!  We gave you three exclamation points for that one.  Are you pumped yet?

Yeah, neither are we. But we’re going to discuss these things anyway, in particular the way in which the court addressed them in a recent MDL decision in the hip implant litigation.  In re Biomet M2A Magnum Hip Implant Prods. Liab. Litig., 2013 WL 1729682 (N.D. Ind. Apr. 18, 2013).  Why?  Because it’s important for anyone whose practice involves discovery of massive amounts of electronically stored information (ESI) – and mass torts certainly qualify – to understand the potential cost savings for clients presented by technology assisted searches and the legal viability of implementing them.

We’ve blogged about predictive coding before.  Look here.  In short, predictive coding software “learns” from the user’s selections or preferences and identifies – with greater accuracy as it learns – what the user wants to find.  It’s used for many things on the Internet, and it’s now being used to identify electronic documents for production in litigation.  The process involves an initial interaction between the software and reviewing attorneys, but at some point the software should be able to take it from there alone (for the most part).  Here’s how the MDL court described the process that Biomet used to conduct it review of the 2.5 million documents it selected for review:

Under predictive coding, the software “learns” a user’s preferences or goals; as it learns, the software identifies with greater accuracy just which items the user wants, whether it be a song, a product, or a search topic.  Biomet used a predictive coding service called Axelerate and eight contract attorneys to review a sampling of the 2 .5 million documents.  After one round of “find more like this” interaction between the attorneys and the software, the contract attorneys (together with other software recommended by Biomet’s e-discovery vendor) reviewed documents for relevancy, confidentiality, and privilege.

Id. at *1. While it can reduce costs, things still aren’t cheap.  The review cost Biomet $1.07 million, and Biomet projected that its ultimate costs would total $3.25 million.  But a manual attorney review would have cost much more, and what plaintiffs were asking the court to order Biomet to do would have cost millions more.

Continue Reading Plaintiffs Discover Risks of Refusing to Participate in Predictive Coding Discovery