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In Looney v. Moore, 2018 WL 1547260 (11th Circuit Mar. 30, 2018), the Eleventh Circuit confirmed Alabama law’s rejection of an “increased risk of harm causation standard and established that lack of informed consent plaintiffs must have a physical injury.

Looney is a clinical trial case. Parents of several infants who were born prematurely claimed that the infants suffered injuries as a result of their participation in a clinical trial aimed at analyzing the effects of differing oxygen saturation levels on premature infants. Plaintiffs made negligence, negligence per se, product liability, breach of fiduciary duty and lack of informed consent claims, and they sued the doctors involved in the study, as well as the independent review board and the company that made the medical equipment for the study. Defendants won at the summary judgment stage, and the Eleventh Circuit affirmed.

The simplest issue was causation. The Eleventh Circuit applied Alabama’s strict requirement that a plaintiff making a negligence claim must show that the negligence more than likely caused plaintiff’s injury. An “increase risk of harm” is insufficient:

The Alabama Supreme Court has made clear that, “to present a jury question, the plaintiff in a medical-malpractice action must adduce some evidence indicating that the alleged negligence (the breach of the appropriate standard of care) probably caused the injury. A mere possibility is insufficient. . . . . An alleged “increased risk of harm” is not sufficient to survive summary judgment under Alabama law, which requires proof that the alleged negligence probably caused the injury.

Id. at *3.

Confirming this standard turned out to be the end of plaintiffs’ negligence claims. That’s because no expert, whether it be for plaintiffs or defendants, was willing to say that the defendants’ negligence during the clinical trial probably caused any of the infants’ injuries. At their depositions, defendants’ experts said that the infants’ premature births probably caused their injuries, not participation in the study. Id. Plaintiffs’ own expert could only manage to say that the clinical trial “increased the risk of harm” to the infants, not that it more likely than not injured them. Id. This testimony gave a jury no basis to find for plaintiffs, and the Eleventh Circuit affirmed defendants’ summary judgment victory. Id. at *4.

Plaintiffs’ informed consent claim was a bit trickier. Plaintiffs argued that they did not need a physical injury to make this claim, something that Alabama law had not directly addressed. Id. The Eleventh Circuit sought help on this, certifying a question to the Alabama Supreme Court. But the Alabama Supreme Court declined to answer. Id. This left the Eleventh Circuit in the position of having to predict how Alabama law would decide the issue. Id.

To do this, the Eleventh Circuit first considered the Alabama Medical Liability Act. It required an injury. The Eleventh Circuit also considered Alabama Supreme Court informed consent decisions. In each instance, the court laid out the elements of any informed consent claim, but they did not explicitly include injury. The Eleventh Circuit was not troubled by this because, in each case, the plaintiff not only suffered an injury, but a serious one. Id. at *5.

Left looking for any support for their theory of a claim without physical injury, plaintiffs pointed to battery claims, in particular medical battery claims, which in Alabama do not require physical injury. Id. at *7. The Eleventh Circuit distinguished these claims. Battery claims are not based in negligence, but instead on a lack of any consent at all. Id. On the other hand, plaintiffs in lack of informed consent claims actually give consent to the procedure. They just claim that their consent was ill informed. Id. at *8. In other words, their claims are based on the negligence of the medical providers. And that brings us back to the strict requirement under Alabama law that a plaintiff making a negligence claim must establish that the negligence probably caused an injury. With that, the Eleventh Circuit upheld summary judgment against plaintiffs’ informed consent claims. Id. at *9.

This post does not come from the Reed Smith side of the blog.

 

Favorable New Jersey appellate court decisions in product liability cases are almost always worthy of mention here. So we bring you Goodson v. C.R. Bard, 2018 WL 1370652 (N.J. App. Div. Mar. 19, 2018). To be truthful, we’re bringing it back to you. Bexis discussed the trial court’s decision to grant summary judgment to defendants last year.

As we discussed then, this is a case involving mesh used in hernia procedures. The particular mesh product involved in this case is not involved in the pelvic mesh MDL proceedings. And that may be reflected in the strength of the plaintiff’s expert reports, which is to say that they are not strong at all.  While the plaintiff used experts who have been involved in the pelvic mesh MDL, not one of them seemed to give the right opinions.

In particular, even though plaintiff brought a design defect claim, none of his experts gave an opinion that the design of this particular product was actually defective or that such a defect caused the plaintiff’s injuries. Id. at *4-5. Rather, his experts simply described various alleged risks of the product. This is not even close to sufficient to support a design defect claim. Id. Nor did any of the experts opine that there was a safer, feasible alternative design. Id. Similarly, even though plaintiff also brought a negligent failure to wan claim, none of the experts gave an opinion on the standard of care for issuing a warning or whether defendants met that standard. Id. at *5-6. In other words, plaintiff didn’t have a warnings expert to opine on whether the warning was adequate.

In short, plaintiff’s experts struck out looking.

To make matters worse, the treating doctor testified that he was aware of the potential risks of this mesh product and informed plaintiff of them. Id. at *6. There goes proximate causation under the learned intermediary doctrine.

Accordingly the New Jersey appellate division upheld the trial court’s grant of summary judgment to defendants. Unfortunately, it designated its opinion “not for publication.” That’s too bad. But rest assured: it happened. Westlaw already has it on-line. And the trial court’s decision, which Bexis’s post from last year lays out in considerable detail, has an excellent analysis of all the weaknesses in plaintiff’s case, an analysis that was essentially adopted by the Appellate Division. And, of course, we’ve written on it twice now. With all of that, we’re confident that you’ll find some way to make use of this appellate decision in your cases.

(Note that this post comes from the Cozen O’Connor side of the blog.)

Good morning. Do you have your coffee? If so, start sipping it. You will need it. Because this morning we’re going to discuss leads for implantable cardiac defibrillators (“ICD”), Riata Leads to be precise. Now, while this may not be the most thrilling subject, you have to admit that Riata Leads is a solid name. It sounds like something important, like rock-solid leads for selling real estate, the type of game-changing leads that Shelly “the Machine” Levene would plot to steal from his boss’s office. Like the Glengarry leads. But these are not the Glengarry leads. They truly are ICD leads, ones that detect a patient’s abnormal heartbeat and deliver an electric shock to restore a normal heartbeat. So take another sip of your coffee.

Plaintiff Richard Connelly alleges that in 2003 his doctors surgically connected Riata Leads to his heart but that, in 2010, the leads improperly shocked him 16 to 20 times while he slept, causing damage to his heart and requiring surgery to replace them. Connelly v. St. Jude Med., Inc., 2018 WL 732734, at *2 (N.D. Cal. Feb. 6, 2018). Plaintiff hired a lawyer and sued, claiming that St. Jude, the manufacturer, failed to file adverse event reports about the Riata Leads and that, if it had, plaintiff’s doctor would not have implanted them or, in the least, would have removed them after he did implant them. Id. at *1-2.

As you can probably tell already, this is another parallel violation claim. So take another sip. Plaintiffs file a lot of these claims. We write about them often. And they often fail, for many reasons. This one failed because plaintiff didn’t adequately allege causation. In particular, his complaint didn’t connect the defendant’s alleged failure to file adverse event reports about the Riata Leads to his doctor’s decision to implant them or leave them in.

In this respect, the allegations had a number of problems. They had a timing problem. The allegations did not plausibly suggest that the defendants failed to file adverse reports about the Riata Leads before they were implanted in plaintiff, which happened in 2003. Id. at 3. The allegations had regulatory problems. While the FDA issued a 483 Report covering the years 2002 to 2009 noting that the defendant failed to file adverse event reports on Riata Leads, plaintiff did not identify a single failure to file a report before the Riata Leads were implanted in him in 2003. Id. The allegations had defect identification problems. The FDA inspection that resulted in the 483 Report focused on malfunctions in the Riata Leads due to perforation, but the defect alleged by plaintiff had to do with improper abrasion. Id. OK, take one last sip of coffee. We’re almost there.

Finally, plaintiff claimed that defendant’s failed to file adverse event reports about Riata Leads after they were implanted in him, resulting in his doctor not removing them. This theory failed as a matter of California law, which does not allow such claims:

[T]o the extent Connelly’s claim is premised on a theory that St. Jude had a post-distribution (i.e., post-implantation) duty to warn, this fails as a matter of law. Under California law, a defendant may be held strictly liable for a failure to warn only if “the defendant did not adequately warn of a particular risk that was known or knowable…at the time of manufacture and distribution.” Anderson v. Owens-Corning Fiberglas Corp., 810 P.2d 549, 558 (Cal. 1991).

Id. at 4.

Having already dismissed plaintiff’s complaint once before, this time the Court dismissed it with prejudice.

Ok, all done. Now “Put . . . that . . . coffee . . . down! (I’m here from downtown. . . . I’m here from Mitch and Murray.)

The pushback by Plaintiffs’ lawyers against the Supreme Court’s BMS decision continues, and it continues to largely fail.

The lawsuit in Dyson v. Bayer Corp., 2018 WL 534375 (E.D. Mo. Jan. 24, 2018), began in state court in St. Louis, a favorite destination of plaintiffs’ lawyers. The complaint made product liability claims about Bayer’s implantable birth-control device, Essure, and named 95 individual plaintiffs. Only 3 of those individuals lived in Missouri. The other 92 lived in other states, including states that could destroy complete diversity and prevent removal of the case to federal court. But defendants removed the case to federal court anyway, arguing that Missouri courts could not exercise personal jurisdiction over the claims of those 92 plaintiffs, who were not only non-residents but who also did not receive their Essure implants in Missouri. Plaintiffs responded by filing a motion to remand the case to state court or, in the alternative, to conduct fact discovery on the existence of personal jurisdiction. Id. at *1-2. And, with that, the latest challenge to the breadth of the BMS decision was teed up.

The plaintiffs’ lawyers’ theory as to why Missouri courts could exercise personal jurisdiction over the claims of these 92 plaintiffs was based on an observation made by the Supreme Court in BMS: “BMS did not develop, create a marketing strategy for, manufacture, label, package, or work on the regulatory approval for Plavix in [the forum state of California.]” Id. at 4 (quoting Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1778 (2017). So the complaint in Dyson alleged, in some detail, that the defendants conducted clinical trials for the regulatory approval of Essure in Missouri and started their marketing campaign for Essure in Missouri. As the Dyson court put it, plaintiffs claimed that these allegations, in the least, made a prima facie case for personal jurisdiction:

Plaintiffs seize upon that [BMS] language and suggest the Supreme Court offered those factors as a blueprint for establishing personal jurisdiction. Plaintiffs thus believe they have solved their personal jurisdiction problems because they allege that the defendants worked on regulatory approval for Essure in Missouri and also worked on the Essure marketing campaign in Missouri. Plaintiffs argue that they have at least made a prima facie case for personal jurisdiction and that they should be able to conduct jurisdictional discovery to prove the plaintiffs’ claims’ connections to Missouri.

Id. at 4.

The Dyson court started its analysis by first addressing personal jurisdiction. This was a significant choice. If the court had instead addressed subject matter jurisdiction, it could have (blindly) declared a lack of complete diversity and remanded the case to state court. But it, properly, started with personal jurisdiction because, as the court put it, the personal jurisdiction inquiry was straight-forward. The deficiencies of the allegations under BMS were just too significant:

This Court agrees that, despite these new allegations made by plaintiffs, personal jurisdiction remains the more straightforward inquiry. To address subject matter jurisdiction at this juncture would involve deciding whether non-Missouri plaintiffs had been fraudulently joined or misjoined, which is a notoriously complex issue. As shown below, the personal jurisdiction inquiry is a much simpler matter. Further, because plaintiffs do not make a prima facie showing for personal jurisdiction, the motion for jurisdictional discovery (#24) will be denied.

Id. at *3 (citations omitted).

Having decided that personal jurisdiction was a threshold issue, the court addressed plaintiffs’ claim that defendants started their Essure marketing campaign in Missouri. The court waded through the details of plaintiffs’ marketing allegations and found that they did not establish a sufficient connection to claims of plaintiffs who did not live in Missouri, were not prescribed and did not purchase the Essure device in Missouri, were not injured in Missouri, and did not see or rely on marketing in Missouri:

With respect to plaintiffs’ arguments that personal jurisdiction may be supported by the alleged Missouri marketing campaign genesis, those arguments are contrary to BMS. In fact, the BMS plaintiffs themselves alleged that BMS marketed, advertised, and actively sought to promote Plavix in California specifically. Id. at 1779, 1783. Plaintiffs here go a step farther, saying defendants used Missouri as “ground zero” for its national campaign — that is, St. Louis was the first city to commercially offer the Essure procedure and was one of eight “test marketing” campaign sites. (Petition ¶ 165.) Plaintiffs also state that defendants cite to data from the Missouri clinical trials on Essure’s labels and in marketing materials distributed to plaintiffs and their physicians. (Id.) Plaintiffs add that defendants’ success with Essure in St. Louis allowed defendants to achieve profitability and launch a nationwide advertising campaign. (Id.) However, the non-Missouri plaintiffs do not allege they viewed Essure advertising in Missouri. That Missouri happened to be Essure’s first marketed area has no bearing on the non-Missouri plaintiffs’ claims where those plaintiffs did not see marketing in Missouri, were not prescribed Essure in Missouri, did not purchase Essure in Missouri, and were not injured by Essure in Missouri. Thus the allegations still do not suffice to provide the necessary “connection between the forum and the specific claims at issue.BMS, 137 S. Ct. at 1781.

Id. at *4.

The court next considered—and rejected—plaintiffs’ argument that the court had personal jurisdiction over the non-resident claims because defendants sponsored clinical trials in Missouri as part of their effort to secure regulatory approval of Essure. The court, once again, found this to be an inadequate link to establish personal jurisdiction:

As for plaintiffs’ allegations about the clinical trials having occurred in Missouri, plaintiffs argue that such activities play directly into BMS’s invitation to prove personal jurisdiction by showing the defendant “work[ed] on the regulatory approval of the product” in Missouri. Id. at 1778. But the Missouri clinical trials — the existence of which defendants readily admit — are simply too attenuated to serve as a basis for specific personal jurisdiction for defendants. Indeed, the trials would serve more properly as evidence of general personal jurisdiction. The non-Missouri plaintiffs do not allege they participated in a Missouri clinical study or that they reviewed and relied on Missouri clinical studies in deciding to use Essure. Plaintiffs also seem to suggest that specific jurisdiction exists because Essure could not have been approved without clinical trials, and some of those clinical trials occurred in Missouri. But again, this does not serve as an “adequate link” between Missouri and nonresidents’ claims that their individual device injured them in another state. See id. at 1781.

Id. at *5. With that, the court dismissed the claims of all 92 non-Missouri residents and retained jurisdiction over the claims of the remaining 3 plaintiffs.

While this was an excellent opinion, its importance may be greater than the ordinary opinion rejecting efforts to stretch personal jurisdiction under BMS. The District Court Judge was Stephen Limbaugh. He is a former Chief Justice of the Missouri Supreme Court and, as we understand it, well respected. This suggests that the current members of the Missouri Supreme Court will give his opinion a close read. Given how many product liability cases are filed in Missouri, that has to be a good thing.

When we described for you (here and here) the briefing on the appeal of the half-billion-dollar verdict in the Pinnacle Hip Implant MDL’s second bellwether trial, we left out maybe the most intriguing issue. This is one the likes of which we have not seen before: the case of the unpaid experts who were paid. Well, not really paid. They received a “thank you.” In the form of money. So, yeah, paid. This unpaid paid expert issue was serious enough to trigger a motion for a new trial from defendants under FRCP 60(b) (3). The denial of that motion is now part of the appeal.

Defendants’ opening appellate brief describes the issue in some detail. At trial, plaintiffs’ counsel repeatedly argued or elicited testimony in front of the jury that two of plaintiffs’ expert witnesses were not paid, contrasting them to defendants’ experts whom plaintiffs’ counsel described as giving “bought testimony.” If true, we see why plaintiffs’ counsel would stress this point to the jury. But . . . During depositions of those two experts for the next bellwether trial, defendants learned that they were in fact paid: one received $30,000; the other received $35,000 and a promise from plaintiffs’ counsel to donate $10,000 to the expert’s preferred charity. They sure seem like paid experts.

Plaintiffs try to clear this up in their opposition brief. In many respects, they only create confusion. They argue that, for instance, it was the defendants who paid one of these two experts—a full $10,000. But that expert was also a treater of two plaintiffs, and he appears to have charged defendants, as many treating doctors do, for appearing at two fact depositions about those plaintiffs. That is not an expert issue. After that detour, Plaintiffs’ lawyers concede that they did, in fact, pay these two experts the $65,000 and send the $10,000 to the charity. But they stress that they paid the experts after trial, that they agreed to pay the charity after the expert’s testimony, and that the experts did not ask for the payments. Instead, they claim that plaintiffs’ counsel decided after trial on their own—that’s sua sponte for us lawyers—to make the payments to the experts and the charity. They did this to show “appreciation” to the experts and to say “thank you.” Setting aside that this could raise other concerns—that is, paying an expert based on success—plaintiffs use this as a basis to argue they were well within bounds to tell the jury that the experts were not paid. . . . It’s starting to feel a little uncomfortable in here.

In their reply brief, defendants note, as they did in their opening brief, that one of the experts flat out admitted at his deposition that he always expected to be paid for his testimony at trial (and brushed off, because apparently they had to, the idea that the expert might have thought the defendants would pay him for testifying against them at trial). They also point out that the record shows that the promise to pay $10,000 to one of the expert’s preferred charity was made before trial

At oral argument, things got even more interesting—believe it or not. The court asked plaintiffs’ counsel to produce the $10,000 check to charity. Plaintiffs did so in a filing. Here it is, including the check and plaintiffs’ counsel’s explanatory letter. Take a close look at the check. It is dated December 4, 2015. That’s five weeks before the January 11, 2016 trial. Not only the promise, but the actual payment, came before trial. . . . It’s getting even more uncomfortable in here. Feel free to read the explanation in plaintiffs’ counsel’s letter. And here is the response from defendants.

So what can we make of all this. We really don’t know. But we do know one thing. No matter what you say about the Pinnacle Hip Implant MDL, it’s never boring. The Fifth Circuit will issue its opinion soon enough.

In one respect, Chaiken v. Bristol-Myers Squibb, 2017 U.S. Dist. 177588 (D.N.J. 2017), is just another example of a court granting a defendant drug manufacturer summary judgment on a failure to warn claim because the prescriber testified at her deposition that a different warning would not have changed her prescribing decision. On closer inspection, the decision also reveals a district judge unwilling to credit a prescriber declaration that was produced after a summary judgment motion was filed and, more important, obtained through ex parte discussions with the plaintiff’s attorney.

As background, this is a Plavix case. The plaintiff was admitted to the hospital in September 2011 with a TIA and prescribed Plavix. The prescriber in the hospital was a Dr. Bahreman. After her discharge, another doctor, a Dr. Leonard, prescribed plaintiff Plavix on an ongoing basis. In November 2011, while using Plavix prescribed by Dr. Leonard, plaintiff suffered a GI bleed, the basis of her lawsuit. Id. at *6-7.

During discovery, the deposition testimony of both prescribing doctors seemed to doom plaintiff’s failure to warn claim. The doctors testified to understanding the risk of bleeding associated with Plavix, and yet they still stood by their prescribing decisions:

Here, there is no dispute that both Drs. Bahreman and Leonard testified—at their deposition—that even considering the bleeding risks and the additional warnings, they would have prescribed Plavix to Plaintiff in light of various medical factors in connection with Plaintiff’s condition, particularly the fact that Plaintiff might have been intolerant of aspirin.

Id. at *19. That reads very much like “Miller time.”

But that’s when the ex parte declaration shows up. After the depositions, and indeed after defendants filed their summary judgment motion, plaintiff’s attorneys made a trip back to see the prescribing doctor in the hospital, Dr. Bahreman, held ex parte discussions during which they showed him a clinical study, and walked away with a declaration in which the doctor said that he would have shared the additional clinical information and plaintiff would not have been prescribed Plavix. Id. at *25.

While the content of this declaration appears, at first blush, to present problems, the procedure under which it was obtained had more problems. The court was uncomfortable with it. In a lengthy footnote, the court examined the history of the Plavix MDL’s restrictions on ex parte communications with doctors, including the court’s ultimate prohibition of such contact during discovery:

. . . After the deposition of Dr. Bahreman, Plaintiff’s counsel engaged in ex parte conversations with the doctor for the purposes of opposing Defendants’ summary judgment motion. . . . As Defendants pointed out, a previous Order, entered by the Magistrate Judge early in this litigation, disallowed counsel to have any ex parte communications regarding liability issues with the treating physicians of any of the plaintiffs in the MDL, with no exception for post-deposition communications. . . . I held that counsel may not have ex parte communications with plaintiffs’ treating physicians, including post deposition, except that counsel may contact a treating physician at the close of discovery and after the resolution of a summary judgment motion. . . .

Id. at *11, n. 2.

While clearly uncomfortable with the declaration, and faced with a request by defendants to apply the sham affidavit doctrine, the court was able to sidestep these issues by finding the declaration lacking in the necessary substance: “Because I find that even considering Dr. Bahreman’s declaration, summary judgment is appropriate, I need not address those arguments.” Id.

In particular, the court noted that Dr. Bahreman was not the prescribing physician at the time that the GI bleeding occurred. It was Dr. Leonard. Dr. Bahreman’s declaration did not matter. Separately, the court interpreted language in the declaration—that Dr. Bahreman would have “shared” information from the clinical study he’d reviewed with the plaintiff’s lawyers and Plaintiff “would not have been prescribed Plavix”—to mean that Dr. Bahreman would have shared the information with Dr. Leonard, the subsequent prescriber who treated plaintiff at the time of the GI bleed. But Dr. Leonard quite clearly testified that she would nonetheless have prescribed Plavix to plaintiff. As such, the court disposed of the failure to warn claim without addressing the potential impropriety of the ex parte declaration:

Dr. Leonard was the final decision-maker, or the prescribing physician, who ultimately determined that the benefits of placing Plaintiff on Plavix far out-weighed the bleeding risks that she posed. Thus, for the purposes of applying the learned intermediary doctrine, the relevant inquiry should be focused on whether Dr. Leonard was sufficiently warned by Defendants regarding the risks of Plavix, and whether Dr. Leonard would, in any event, have prescribed Plavix to Plaintiff in light of additional warnings proposed by Plaintiff. Indeed, as to both of these questions, Dr. Leonard testified in the affirmative.

Id. at *22.

We suspect that any future ex parte communications in the Plavix MDL with prescribers during discovery, and particularly after the filing of a motion for summary judgment, will be treated more directly and harshly by the court. This decision sends that signal. Justice is simply not served by presenting a “clarified” ex parte declaration after a deposition already resulted in testimony that had been vetted under adversarial questioning.

As we publish this post, lawyers in the Pinnacle Hip Implant MDL are gathering in the Bob Casey Courthouse in Houston or in coffee shops, breakfast cafés or law offices nearby awaiting the argument to come.  At 10:00 a.m., the arguing starts.  The Fifth Circuit will officially begin to consider whether to issue a writ of mandamus telling the Pinnacle Hip Implant MDL Court in Dallas that it cannot exercise personal jurisdiction over the upcoming September bellwether trial involving eight New York plaintiffs. The Fifth Circuit will tackle the substance of the appeal—did defendants waive their personal jurisdiction defense as to those eight cases and, in fact, as to all cases in the MDL when they gave a waiver in connection with the first two bellwether trials? Maybe more important, the Fifth Circuit will tackle procedure—are these the type of rare circumstances that require it to issues a writ of mandamus?

We first posted on this petition to the Fifth Circuit on August 8.  Defendants’ petition argued—fairly convincingly—that the context of their waivers, and the language of the waivers themselves, made clear that they applied only to the cases selected for the previous bellwether trials that were upcoming at the time that the waivers were made, and not to all MDL cases.  (Here is a copy of the petition.)  The defendants’ petition challenged an order issued by the MDL trial holding that the waivers applied more broadly, encompassing all future MDL cases, even (seemingly) those that had not even been filed yet.  (Here is the trial court’s opinion.)

Since our first post, the plaintiffs’ filed an opposition brief, and the defendants have since filed a reply brief.

Plaintiffs’ response brief is confusing at times. It argues (at 19) that MDL courts can exercise the personal jurisdiction necessary to conduct bellwether trials with the consent of the parties. Well, yes. With the consent of the parties. But the existence of consent is the very issue being considered by the Fifth Circuit. Plaintiffs’ response also argues (at 18) that an MDL court’s “direct-file order”—an order that allows plaintiffs to file complaints directly in the MDL court even if the underlying claims have no connection to the state in which the MDL court sits—allows it to exercise personal jurisdiction over those directly-filed cases and to conduct trials. No it doesn’t. Courts can’t create personal jurisdiction that otherwise did not exist simply by issuing an administrative filing order. On “waiver,” at one point plaintiffs’ opposition states (at 5) that defendants had previously explained that their waiver for the second bellwether trial was “in order to allow the court to select the next round of bellwether cases.” Plaintiffs then just let that phrase lie there out in the open, essentially making defendants’ argument for them.

Defendant’s reply brief misses none of this, addressing all these seeming missteps. It also turns some of plaintiffs’ arguments in defendants’ favor. For instance, plaintiffs argue that only two cases address the states’ contacts that should be considered in a direct-file case, claiming that both cases were decided wrongly. Defendants highlight (at 1), however, that this is the precise type of lack of guidance that requires the Fifth Circuit to weigh in. Defendants’ reply brief (at 2) explains that such guidance would assist not only in the upcoming Pinnacle Hip Implant bellwether trials, but also in future Pinnacle bellwether trials and other future MDL proceedings in the Fifth Circuit, as well as dispose of a current Pinnacle appeal. Most important, defendants’ reply brief highlights (at 6) the strict standard for finding a waiver of personal jurisdiction: “a clear and unambiguous showing of a deliberate relinquishment of a known right.” Armstrong v. LaSalle Bank Nat. Assoc., 552 F.3d 613, 615 (7th Cir. 2009). Under this standard, it’s hard to see how the waivers by defendants could ever be reasonably interpreted to apply broadly to all MDL cases.

The Fifth Circuit will test and probe all of these issues and arguments later this morning. It will likely be a fascinating back-and-forth. Now, as with any writ of mandamus, this is a long shot. But personal jurisdiction is a hot button issue right now. And the Fifth Circuit’s decision could affect many cases, as this MDL trial court has a penchant for arranging incredibly large multi-plaintiff bellwether trials. Regardless, one thing that we are reasonably sure of is that the Fifth Circuit will rule quickly. The next bellwether trial is only a couple of weeks away. And so we expect to be posting on the Fifth Circuit’s decision soon.

If not yet dead, the medical monitoring claim itself is hooked up to monitors and the prognosis is not good. It’s dying from a self-inflicted injury, which paradoxically is its lack of injury. Class action plaintiffs’ lawyers, the lawyers who have largely filed these claims, despise physical injuries. Physical injuries come with differences, and differences defeat class certification. On the other hand, they love financial damages, like those needed to implement a medical monitoring program. Financial damages come with sameness, and sameness increases the chances of class certification. This is the conundrum for medical-monitoring class action plaintiffs’ lawyers. They have struggled mightily to allege the financial damages that they so want while trying not to allege the physical injury that will kill their chances of certifying a class.

Cure v. Intuitive Surgical Inc., 2017 WL 3381848 (11th Cir. 2017), illustrates how this struggle is killing medical monitoring claims. In Cure, the plaintiffs claimed that, during heart surgery, instruments manufactured by the defendants shed small metallic particles that were later found in plaintiffs’ brains. Plaintiffs’ lawyers brought a medical monitoring claim, asking the court to set aside funds for monitoring plaintiffs, and those similarly situated, so that doctors could identify anything bad that might happen in the future.

But that’s where things go wrong. Plaintiffs could not allege that anything had actually gone bad. Not yet. So they hoped that the presence of small metal particles in their bodies would qualify. It doesn’t. The mere “presence of metal shavings in the plaintiffs’ brains does not, under Georgia law [applicable here], constitute a legally recognizable injury in itself.” Id. at *2. The metal particles had to have “caused or would eventually cause actual disease, pain, or impairment of some kind to support a finding that they suffered an injury.” Id. (quoting Boyd v. Orkin Exterminating Co., 381 S.E.2d 295 (Ga. Ct. App. 1989) (applying Georgia law), overruled on other grounds by Hanna v. McWilliams, 446 S.E.2d 741 (Ga. Ct. App. 1994)).

But the plaintiffs’ lawyers didn’t want to allege anything of the sort. Once they allege a disease, pain or impairment, they have entered the world of physical injury, which brings with it issues of causation, alternative causes, risk factors, predisposition and so many other things that wreck sameness and defeat class certification.

And so plaintiffs struggled mightily to avoid these class-killing problems by piecing together purported injuries that weren’t really injuries. They claimed that they “suffered and will continue to suffer physical, neurological, and mental effects.” Id. But those “vague, conclusory statements” weren’t nearly enough to satisfy the TwIqbal pleading standard. Id. They alleged that they would suffer future medical costs and lost wages. But, again, they were unable to tether these allegations to any explicit symptoms or conditions or how they would interfere with the plaintiffs’ work. Id.

In effect, plaintiffs’ claims had achieved sameness. They all had the same lack of injury. And, for that very reason, the district court dismissed plaintiffs’ medical monitoring claims, as had so many courts before it.  And, with its decision in Cure, the Eleventh Circuit upheld that dismissal. Id. at *3.

Posts on personal jurisdiction, or the lack of it, have been all over this blog ever since the Supreme Court decided Bristol-Myers Squibb Co. v. Superior Court. Something similar happened three years ago after the Supreme Court decided Daimler AG v. Bauman. Together, these two decisions establish that federal courts are not empowered to find a reason to assert personal jurisdiction simply because the defendant is a large company doing business nationally. General jurisdiction requires the state in which the federal court sits to be the defendant’s “home,” meaning that it was incorporated there or has its principle place of business there. Specific jurisdiction requires that the very transaction from which the plaintiff’s claims arose involve the state in which the federal court sits. Otherwise, the court should dismiss the case. These decisions hold the promise of virtually eliminating litigation tourism.

But the plaintiffs in the Pinnacle Hip Implant MDL are trying to resurrect it, if only in their own litigation. The MDL is pending in federal court in Dallas. And yet the MDL court recently held, seemingly, that it can exert personal jurisdiction against the defendants and conduct trials in every case before it, even those that have no connection to Texas.

As many of us know, MDL courts have jurisdiction over the many cases that are transferred to them, but only for pretrial purposes. The transfer does not create personal jurisdiction for trial. Cases over which the MDL court does not have such personal jurisdiction must be transferred for trial back to the originating district court—or an appropriate district court that can exert personal jurisdiction. 28 U.S.C. 1407(a).

So, how is the MDL court doing this? Well, the lack of personal jurisdiction defense is waivable. And that’s where the MDL court is hanging its robe. It ruled in its June 28, 2017 decision that the defendants waived their defense of lack of personal jurisdiction—and not just for cases already tried, but (seemingly) for every Pinnacle hip implant case that has been filed and will be filed and that makes its way to the MDL. The defendants made this perpetual waiver, according to the MDL court, during proceedings before the special master, who at the time was working to arrange the first and second bellwether trials.

The defendants vehemently disagree. They say that their waiver, given the setting and the very language that they used, was limited only to personal jurisdiction as to the cases involved in the first and second bellwether trials, not all cases and forever. They believe this so strongly that they have filed a petition for a writ of mandamus to the Court of Appeals for the Fifth Circuit, asking that court to order that the MDL Judge cannot exercise personal jurisdiction in any of the eight cases with New York plaintiffs that the MDL court scheduled for the next bellwether trial, which starts in September.

It’s a petition for a writ of mandamus, so from the start defendants’ chances of victory are slim. But, last year, even in losing a petition for a writ of mandamus on another issue, the defendants got one of the Circuit Court judges (in a concurring opinion) to say that the MDL judge got it wrong. We’ll see what happens here. Plaintiffs must respond by the 14th. And the Fifth Circuit will almost certainly rule before September 5, when this next multi-plaintiff bellwether trial is set to begin.

The Pinnacle hip implant litigation is never without intrigue.

This post comes from the Cozen O’Connor side of the blog.

We’ve been blogging about “removal before service” since we announced it to the world in 2007.  It’s a procedural tactic that enables defendants to remove cases to federal court despite the “forum defendant rule,” which ordinarily prohibits a defendant from removing to federal court a case that, while it meets the requirements of diversity jurisdiction under 21 U.S.C. § 1332(a), is also pending in the home state of the defendant. Here’s the rule as codified in 21 U.S.C. § 1441(b) (2):

A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(Emphasis added).

We emphasized the phrase “properly joined and served” because that’s the basis for “removal before service.” Defendants have had success, in certain courts before certain judges, arguing that this phrase should be interpreted according to its plain terms and that, therefore, a defendant who has not yet been served can remove a case on diversity jurisdiction grounds even if the case is in its home state court.

The court in Young v. Bristol-Myers Squibb Co., 2017 U.S. Dist. LEXIS 98736 (D. Del. June 27, 2017), is one of the courts that accepts this argument. Young was one of 33 cases in the Eliquis drug litigation that plaintiffs’ lawyers had filed in the Superior Court of Delaware. Each plaintiff and the two defendants, Bristol-Myers Squibb and Pfizer, were citizens of different states, suggesting that the cases were ripe for removal to federal court on the basis of diversity jurisdiction. But BMS and Pfizer are citizens of Delaware (as are so many corporations), implicating the forum defendant rule’s bar to removal of diversity cases.

But, as the Young court put it, all of this occurred “before Plaintiffs served (or, due to Superior Court procedures, could have served) their complaints on Defendants.” Id. at *2. The defendants had an opportunity. And they took it. They immediately removed the cases to the United States District Court for the District of Delaware where they had the good fortune of drawing a judge who had previously blessed “removal before service”—and did so again:

The undersigned judge has had several occasions to consider this issue. Having done so again, the Court sees no reason here to depart from its previously-adopted reasoning. See Munchel, 2012 U.S. Dist. LEXIS 128971, 2012 WL 4050072; Hutchins, 2009 U.S. Dist. LEXIS 4719, 2009 WL 192468. As in Munchel and Hutchins, the Court views the plain and unambiguous language of § 1441(b) as controlling. Section 1441(b)(2) provides that a case in which there is diversity jurisdiction “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Here, there is diversity jurisdiction, but because there was no service on any defendant before removal, none “of the parties in interest properly joined and served as defendants is a citizen” of “the State in which [this] action” was brought, i.e., Delaware. 28 U.S.C. § 1441(b)(2) (emphasis added).

Id. at *5 (emphasis in original). And so we have yet another decision approving “removal of service” under the plain terms of the statute.

In this instance, the Court suggested that it had an additional reason to rule the way it did. The plaintiffs had already engaged in forum-selection tactics of their own. The cases were originally filed in California state court, not Delaware. The defendants, who were not California citizens, promptly removed the cases to a federal court in California and started the process to transfer the cases to the Eliquis MDL, a place that plaintiffs most certainly did not want to be. So—and here it comes—the plaintiffs voluntarily dismissed all 33 cases. They then re-filed the cases, the very same day, in Delaware state court, a court from which they hoped the forum defendant rule would hamstring defendants from once again removing the cases to federal court. Id. at *1-2.

This history of forum shopping clearly influenced the Court’s decision on plaintiffs’ motion to remand:

Additionally, given the history of these cases — including that Plaintiffs voluntarily dismissed cases originally filed in California state court, seemingly (at least in part) to avoid transfer to the MDL — removal is not a nonsensical result. To the contrary, the totality of circumstances strongly supports exercising discretion to deny Plaintiffs’ motions to remand.

Id. at *4-5.

So the “removal before service” option lives on, at least in some courts. And Young offers precedent for an argument that “removal before service” may be even more appropriate when the history of the case suggests that the plaintiff had already engaged in some sort of procedural maneuvering before the case was even removed.