This post is from the non-Reed Smith side of the blog only.
It has been almost two months since we’ve posted about an InFuse decision and in case you’ve forgotten, the InFuse litigation has been making a lot of great off-label use law (see most recent post with links to early posts). And now
Have you ever been sitting in a courtroom and wondered why you were there? We don’t mean that in a metaphysical sense, though that probably happens sometimes, too. No, we are thinking of the situation where you realize that neither the plaintiff nor the defendant are citizens/residents of the jurisdiction, and that the events in issue did not occur there either. Why are we here? This sort of thing happens to us a lot in courtrooms in New Jersey and Pennsylvania. Of course, there is an answer to the question: that is where the plaintiff filed the lawsuit. That choice of forum, so we are told by many authorities, is entitled to some respect. Okay, but how much? Forum-shopping is not one of the glories of American jurisprudence. It is a form of lawsuit arbitrage that inflicts inappropriate costs on parties and court systems. (Of course, some courts have unashamedly promoted themselves as litigation-tourist destinations.) When a plaintiff goes forum-shopping, what is being purchased? It could be plaintiff-friendly judges, jurors, laws, or procedures. It is ineluctably unseemly. Plaintiffs, being plaintiffs, sometimes push things a bit far, Forum shopping starts to look like forum-shoplifting.
If we had represented the defendant in the recent case of Kuennen v. Stryker Corp., 2013 U.S. Dist. LEXIS 1555571 (W.D. Va. Oct. 30, 2013), we would have wondered why we were in the place where the case was originally filed, the District of Columbia. The plaintiff, a resident of Virginia, underwent arthroscopic shoulder surgery in Virginia. The plaintiff received a pain pump made and sold by the defendants, to infuse a local anesthetic into the shoulder joint space. Now the plaintiff was alleging that the pain pump caused her to lose cartilage in her right shoulder joint. The defendants were both Stryker entities, which we will call “Corp.” and “Sales.” Neither was a citizen of D.C. The pain pump was not designed, manufactured, or sold in D.C. and the alleged injury occurred in Virginia. The defendants did not simply wonder why they were being hauled into a D.C. court; they successfully moved under section 1404 to transfer the case to the place where it should have been filed, Virginia. End of forum-shopping, right?
Maybe. Yeah. But not without a tussle. The defendants moved for summary judgment based on the statute of limitations. The defendants contended that the plaintiffs’ claims were barred by the Virginia two-year statute of limitations. In opposition, the plaintiffs asserted that the D.C. statute of limitations should apply with its favorable discovery role as to the accrual of the cause of action. The parties agreed that if the Virginia statute of limitations applied, the case would be dismissed, and if the D.C. statute applied, the case would continue, at least for a while. Why is it even an issue? The case is in Virginia, right? Not so fast. When an action is transferred under section 1404(a) from one district court to a district court in another state, the transferee court must apply the same law as the transferor court would have applied. The forum-shopping effect lingers.Continue Reading No D.C. Personal Jurisdiction = No Loose D.C. Statute of Limitations = No Case
Most of the time we do not linger on cases that turn on the statute of limitations. They are often fact-specific to the point of dreariness. In addition, from a doctrinal perspective, there isn’t much new under the Sun when it comes to a SOL analysis. But the SOL discussion in Hendrix v. Novartis Pharmaceutical Corp., 2013 U.S. Dist. LEXIS 14936 (C.D. Cal. Oct. 2, 2013), is so comprehensive and cogent that it merits a look, a post, and a new entry on our cross-jurisdictional tolling scorecard.
Hendrix is yet another Aredia-Zometa case. As we said last week, we are becoming a scrivener for the ongoing A-Z saga. As with all A-Z cases, the plaintiff ingested Aredia or Zometa as part of cancer treatment and claimed to have suffered osteonecrosis of the jaw (ONJ) as a result. Also, because there is an A-Z MDL, the filing/forum history of the case is something of an adventure. The plaintiff filed his Complaint in the Eastern District of New York on January 17, 2006. The case was consolidated in 2007 into the MDL in the Middle District of Tennessee. The defendant filed its SOL motion, but before it could be heard by the MDL court, the case was remanded back to EDNY. Then the parties moved to transfer the case to C.D. Cal. If the case could acquire frequent flyer miles, it would have earned enough to … ah, who are we kidding? With all the restrictions on frequent flyer awards, the case wouldn’t be able to get a free flight anywhere. It wouldn’t even get free WiFi or a do-it-yourself Bloody Mary.
It makes sense for Hendrix to end up in C.D. Cal., because the treatment and alleged injury took place in California and California law applies. Under California law, personal injury actions are subject to a two year limitation. Thus, the issue is whether the cause of action accrued before January 17, 2004. If it did, the SOL means that the plaintiff is SOL. To avoid that result, the plaintiff assembled the usual suspects when it comes to SOL: (1) the defendant waited too long to raise the issue (almost as if there is an SOL to SOL defenses); (2) the “discovery” rules saves the day for the plaintiff; (3) cross-jurisdictional tolling saves the day, because somebody somewhere filed a baseless class action that somehow made everybody else freeze up; and (4) equitable tolling is necessary, because … because it would be “equitable.” Let’s face it, the word “equitable” too often is the last refuge for litigants with shoddy arguments. We are happy to report that none of those arguments worked.
Continue Reading Discovery Rule, Cross-Jurisdictional Tolling, and “Equitable” Tolling Cannot Save Aredia-Zometa Case
The Philadelphia diaspora has begun. A confluence of factors is responsible, such as the “under New management” (pun intended) sign on the Complex Litigation Center, the changed, less plaintiff-friendly procedures that have been put in place (discussed here), and a couple of hard-fought diversity of citizenship wins taking major defendants out of the Philadelphia
Marriage is a civil institution, so it’s natural that there are so many laws respecting it. Marriage is also an emotional, fragile relationship, so it’s also natural that many of the laws are a bit nutty. For instance, on Sundays in Hartford, Connecticut, it is illegal for a man to kiss his wife. A married
For some reason, just as pharmaceutical manufacturing is concentrated in New Jersey and Southeastern Pennsylvania, and just as there are an abnormal number of Class II implant manufacturers in Indiana, the epicenter of American pre-market approved medical device manufacturing seems to be in Minnesota.
Similarly, preemption is at the epicenter of medical device product liability litigation involving PMA devices.
Since plaintiffs are able to avoid federal court through the simple stratagem of suing defendants (all defendants, not just medical device manufacturers) in their “home” courts, we have been wondering how PMA preemption would fare in Minnesota state court. Minnesota already has a relatively expansive consumer protection statute and (until recently) an extremely long (six-year) statute of limitations for personal injury cases. If there were also an indication that Minnesota courts would view PMA preemption in a pro-plaintiff fashion, we could see Philadelphia-style influx of litigation tourism.
Fortunately that doesn’t appear to be in the offing. A couple of years ago, Medtronic scored big with In re Medtronic Sprint Fidelis Leads State Court Litigation, 2009 WL 3417867 (Minn. Dist. Hennepin Co. Oct. 20, 2009), which as we discussed at the time, adopted just about all the pro-preemption holdings in In re Medtronic Sprint Fidelis Leads Products Liability Litigation, 592 F. Supp.2d 1147 (D. Minn. 2009), aff’d, 623 F.3d 1200 (8th Cir. Oct 15, 2010). There were a lot of good holdings, which we gloated over here.
Still, Sprint Fidelis was just a county-level trial court. The Sprint Fidelis plaintiffs chose not to take their chances on appeal. One bad decision from the Court of Appeals of Minnesota could wipe everything out.
Or, conversely, one good appellate decision could cement everything in place and send the litigation tourists scurrying elsewhere.
Fortunately, the latter happened the other day. See Lamere v. St. Jude Medical, Inc., ___ N.W.2d ___, 2013 WL 599178, slip op. (Minn. App. Feb 19, 2013). Lamere involved a Class III PMA approved mechanical heart valve, and the court affirmed summary judgment on the basis of preemption. Not even the Public Citizen Litigation Group (probably the other side’s biggest guns on preemption) could sway the result in Lamere.Continue Reading Preemption in the Land of 10,000 Medical Devices
Some of our friends suggested that we honor the NCAA basketball tournament by engaging in a little bracketology. Presumably, they want us to run some legal concepts, cases, or personalities through brackets, ultimately selecting an overall champion. For those five or six of you who did not fill out March Madness sheets, bracketology is a way of deciding a winner by pairing off items, deciding winners, with winners advancing to confront other winners until there is one ultimate winner. Theoretically, bracketology can be as useful as, say, a decision-tree in evaluating alternatives or determining a course of action. Mostly, it’s a harmless diversion. Our favorite recent example was a bracketology treatment of characters from the late, lamented HBO series The Wire.
Bracketology can be fun. But it doesn’t really work for our purposes. Creation of an initial bracket requires a seeding of the contestants. That is, at the outset you first make an assessment of relative value or merit. The excitement of the NCAA tournament is how reality can play havoc with the seeding. (Ask anyone who picked Duke or Missouri to make it to this year’s Final Four.) Injuries, sudden and surprising ineligibilities, 19 year-olds calling timeouts when all timeouts have been used up, screwy turnovers, and miracle shots can all create improbable results. But an abstract exercise is different. It lacks the fluidities and frictions of real life. Doesn’t the initial assessment pretty much predetermine the outcome? How can there be any upsets? In fact, that is what happened with The Wire bracket. Everyone knew right away that Omar would likely win as best character. President Obama picked Omar. And, indeed, Omar won.
When people practice bracketology, the major issue is the extent to which one follows or departs from the “chalk.” The “chalk” means picking the favorites. It is a boring strategy, but is mostly effective. For every amazing underdog success story, such as Butler, George Mason, and VCU, there are way more Kentuckys, North Carolinas, and Michigan States. Odds are that this year’s Final Four will include at least three number 1’s or 2’s. Maybe one surprise team will sneak in. If one followed the chalk for The Wire bracket, one simply had to pick either Omar or Stringer Bell to triumph. (If you haven’t seen The Wire, shame on you. It certainly makes our Final Four of the best television dramas of all time.)
All of which is to say that we won’t be doing Drug and Device Law bracketology. We would simply end up going with the chalk. Plus, we’re not sure how to do the graphics for the brackets. If we were to pair off legal defenses, we’re fairly sure that TwIqbal, Daubert, Preemption, and Statute of Limitations would be our Final Four. A couple of posts ago we discussed how preemption is so strong because it can preclude cases that otherwise possess substantive merit. That is also true with the statute of limitations. We like TwIqbal because it gets rid of junk pleadings, and we like Daubert because it gets rid of junk science. It would be nice if courts followed the chalk and applied these doctrines to send the bad cases away, like Kentucky dispatching an inferior opponent.Continue Reading No Bracketology for Us: Chalk Up Wins for TwIqbal and Statute of Limitations