Indulge us for a moment as we recount another airline adventure. Recently, we traveled thousands of miles to an important argument. Our first flight boarded right on time, left the gate right on time, and taxied down the runway . . . partway. Then stopped. Enter the inevitable announcement: “Ladies and gentlemen, we’re very sorry, but . . . .” This time, there was “cargo” that had been loaded onto the plane by mistake. Lest the perpetrator of the mistake suffer the consequences, the airline jeopardized the connections of a planeload of business travelers.  Finally, we left the gate again. And taxied again. And stopped again. “Ladies and gentlemen . . . .” This time, the captain pointed out the crew cleaning up a deceased bird on our runway.   We finally took off, more than an hour late.  The crew radioed ahead to the connecting city. And we held our breath. We ran up the jetway in the connecting airport with only a few minutes until our connecting flight was scheduled to depart. The plane was a few gates over and was still there.   But . . . “We’re very sorry, ma’am, but boarding is closed.” And we watched the plane fly away without us. Needless to say, we were not terribly polite about this. We ended up renting a car and driving, luckily only a few hours, to our destination. It was our only chance, and we took it. (We also scored 7.500 bonus miles with a very annoyed call to the airline’s customer service department.)

In today’s very short decision, Collette v. Wyeth Pharms., Inc, 2019 WL 2603280 (N.D. Cal. June 25, 2019), the plaintiff was similarly afforded a chance to save his claims but mostly failed to seize the opportunity.  The plaintiff alleged that the defendant’s generic heart medication had caused him to develop pulmonary fibrosis.   He sued the manufacturer of the branded version of the drug along with the subsidiary that manufactured the generic version, asserting the usual product liability claims.  The court had granted the defendants’ original motion to dismiss the complaint but had granted the plaintiff leave to amend several of the claims.

Not so the warnings-related claims, which were dismissed with prejudice on the original motion because, as the court correctly held, they were preempted under Mensing and Bartlett. In his amended complaint, the plaintiff stated that he did not “allege that the warning label or package insert [was] inadequate or should be changed” and that he “[made] no allegations regarding the adequacy of the label.”   Collette, 2019 WL 2603280 at *1. The court disagreed, citing language in the complaint that contained “echoes of the warning and labeling claim” that had been dismissed with prejudice. The court held that these claims had “already been dismissed and [were] not properly before the Court.” Id.

Failure to Provide Medication Guides

In his original complaint, the plaintiff claimed that the defendants failed to distribute a “medication guide” with the drug.   On the original motion to dismiss, the court held that the plaintiff had not included enough detail to state a plausible cause of action; for example, he had not even identified the pharmacy where he filled his prescriptions.   The court also noted that the claim was likely preempted by Buckman to the extent that it was based only on duties arising from federal regulations.

In his amended complaint, the plaintiff failed to supply any additional factual support for the claim – not even the name of the pharmacy where he filled his prescription. The court held that the claim “continue[d] to fail” Twiqbal’s “plausibility requirements.”  In addition, the court held that the claim did “indeed” appear to be based only on federal regulatory duties – that the plaintiff had failed to identify a parallel state duty that would have required the defendants to distribute a medication guide.   As such, preemption provided an “alternative and independent basis for dismissal.” Id. at *2.   This time, the court dismissed the claim with prejudice.

Off-Label Marketing

On the original motion, the court had held that the plaintiff’s off-label marketing claim sounded in fraud and failed to meet the heightened particularity standard of Rule 9(b). The court instructed the plaintiff to “say much more about what, specifically, each defendant said and did, and how these statements and actions (or lack thereof)” related to the plaintiff and to his doctor. Id. The amended complaint again failed to provide this detail, mentioning FDA enforcement actions against one of the defendants but not tying “any of this in any concrete way” to the plaintiff or to his doctors. The court held that the claim read “much more like a general investigative report than an actionable complaint” for a specific injury attributable to the defendants. Id. Inexplicably, however, the court again dismissed this claim without prejudice and gave the plaintiff one final opportunity to amend this claim.

So the plaintiff has one last chance to save his sole remaining claim.   We’ll be watching to see if he does. And we’ll keep you posted.

 

We like preemption and we dislike expensive discovery. In Gale v. Mentor Worldwide, LLC, 2019 WL 2567790 (D. Kansas June 21, 2019), the court felt the same way we do, and did something about it.

The plaintiff in Gale sued for injuries allegedly sustained as a result of silicone breast implants. The complaint contained the usual claims for failure to warn, manufacturing defect, and design defect. Breast implants went through the rigorous Pre-Market Approval process, which permitted the defendant to move to dismiss on grounds of preemption via the Medical Device Amendments. The defendant also moved to stay discovery pending resolution of the motion to dismiss.

Kansas is in the Tenth Circuit, and the Gale court tells us that the Tenth Circuit does not favor stays of discovery. The Tenth Circuit is probably not very different from other courts in that respect. Judges everywhere at least pay lip service to the notion that things should move along. Thus, a party seeking a stay of discovery must “clearly show a compelling reason” for the stay. That sounds like a tough standard. The Gale court goes on to say that the pendency of a dispositive motion is not necessarily, er, dispositive in terms of supporting a stay of discovery. All that judicial throat-clearing aside, if it truly looks like the motion is likely to end the case, a stay of discovery makes sense, especially where the facts sought through the remaining discovery would not affect the ruling on the pending motion.

Perhaps that sounds a little squishy for your taste. Discovery is a one-way ratchet that plaintiffs use to bang corporate defendants on the noggin. It ends up costing much more money than most civil defendants who are found liable end up paying. Discovery also disrupts business operations. Those corporate witnesses who are forced to sit in conference rooms while plaintiff lawyers drone on endlessly with questions ending, “did I read that correctly?” actually have jobs to do. And what about the Sixth Amendment? But bank on this: the first thing that plaintiffs will say when you tell them you’re going to file a preemption motion is that they will need discovery to test the preemption theory.

Consequently, it is perfectly understandable that the defendant in the Gale case tried to find a more robust theory supporting a stay. What it came up with is the notion that a stay is appropriate “when the party requesting it has filed a dispositive motion asserting absolute immunity.” Okay, we get why the defendant dresses preemption in the garb of immunity. We have more than once praised the power of preemption in that it halts a case even if so many other aspects of the claim are in the plaintiff’s favor. The defendant even found a Tenth Circuit case that used the word “immunity” to describe the protection from state tort suits that preemption brings. But the Gale court held that the use of the word “immunity” was merely “coincidental” or rhetorical, and refused to extend the immunity analysis to the defendant’s request to stay discovery pending resolution of the preemption motion.

Still, in Gale, the defendant had a very good PMA preemption defense – that is to say, it had a PMA preemption defense. Perhaps preemption is not technically “immunity,” but the same considerations warrant a stay of discovery pending decision on the preemption issue. It helped that the defendant cited six cases – four federal and two state – that stayed discovery pending similar motions to dismiss by the same defendant. Maybe those cases weren’t controlling, but they gave the Gale court reason for pause – and reason to pause discovery in that case, because a grant of the motion to dismiss seemed likely enough. PMA preemption is, or at least should be, fairly straightforward, and no discovery dreamt up by plaintiff lawyers can affect the analysis. Therefore, even absent a specific showing by the defendant that the discovery in the Gale case was especially burdensome, any discovery would turn out to mean “the parties would have incurred unnecessary expense.” The Gale court exercised its discretion to stay discovery.

What is the ultimate takeaway from Gale? Forget about the rejection of the immunity argument. That was a clever argument that was hardly devoid of merit, but it is no shocker that the court didn’t plump for it. The court was probably worried about how far that theory might go. No, the meaning of Gale is that the pendency of a PMA preemption motion by itself establishes a clearly compelling reason to stay discovery. It might be a good idea to lay out for the court why discovery would be gruesomely oppressive and costly, but Gale says you do not need to do that.

Did you ever wish there was a way to get a definitive answer to those age-old issues that have been plaguing humans since the beginning of time?  Like — is it worse to fail at something or never attempt it in the first place?  Or — does nature shape our personalities more than nurture?  What about the questions the only plague us when we are stuck in traffic or at three in the morning.  Why is it said that an alarm clock is going off when really it’s coming on?  At a movie theater which arm rest is yours?  When does it stop being partly cloudy and start being partly sunny?  Why are there no “B” batteries?

Alas, even in the age of asking Siri, certain answers remain elusive.  But, long before Alexa was searching Google, courts had a system in place for getting to the bottom of an issue – the certified question.  A neat little device whereby one court asks another court, usually of higher authority, for an opinion on a question of law.  That’s just what the Eastern District of Pennsylvania did in Rosenberg v. C.R. Bard, Inc., __ F. Supp. 3d __, 2019 WL 2596358 (E.D. Pa. Jun. 25, 2019).  Faced with competing decisions on an issue of Pennsylvania law, the district court rendered its decision, but is certifying a question to the Third Circuit for an immediate interlocutory appeal.  The question is:

[D]oes Pennsylvania law recognize a strict liability claim for a manufacturing defect of a prescription medical device?

Id. at *7.  It may not be a question as old as why doesn’t glue stick to the inside of the bottle?  But, it has been open to debate for several years.

Pennsylvania has long applied comment k of §402A of the Restatement (Second) of Torts across the board to bar strict liability design and warning claims.  Comment k exempts “unavoidably unsafe products” from strict liability when they are properly prepared and accompanied by proper warnings.  If §402A “defines the general scope of strict liability,” comment k “sets the perimeter beyond which Section 402A many not encroach.”  Rosenberg, at *3.

Rosenberg walks through Pennsylvania’s history with comment k.  The Pennsylvania Supreme Court has held that comment k applies to prescription drugs.  Hahn v. Richter, 673 A.2d 888 (Pa. 1996).  But Rosenberg involves a prescription medical device and the applicability of comment k to medical devices has not been answered by Pennsylvania’s highest court.  Both Pennsylvania Superior Courts and federal courts applying Pennsylvania law, however, have held that Pennsylvania would extend comment k to prescription medical devices as well.  Rosenberg does too.  Rosenberg at *3-4.  But that’s the easy part of the issue.

Going back to Hahn, Pennsylvania has said the comment k bars strict liability claims for design defect and failure to warn.  Id. at *5.  But the plaintiff in Rosenberg also alleged a strict liability manufacturing defect claim.  Whether that claim is permissible is less certain and federal courts interpreting Pennsylvania law have come out differently.  That’s because the trend in Pennsylvania courts has gone back and forth with no definitive answer.

First, there was Lance v. Wyeth, 4 A.3d 160, 164-65 (Pa. Super. Ct. 2010) (Lance I), in which the Pennsylvania Superior Court in dismissing a claim for negligent marketing said that a strict liability manufacturing defect claim was possible in a prescription drug case.  But, the Pennsylvania Supreme Court reversed Lance I finding the court’s reasoning “deeply flawed” and that it erroneously equated “products liability” with “strict liability.”  Lance v. Wyeth, 85 A.3d 434, 453 (Pa. 2014) (Lance II).  So, many courts, including Rosenberg, find that Lance I “is entitled to no weight.”  Rosenberg at *6.

Lance II also held that the Pennsylvania Supreme Court “ha[d] declined to extend strict liability into the prescription drug arena” but had not immunized drug manufacturers from other types of liability.  Id.  Which courts have come to interpret as Pennsylvania recognizes negligence claims for prescription drugs, but not strict liability claims.  Id.

Then came Tincher v. Omega Flex, Inc., 104 A.3d 328, 382 (Pa. 2014) in which the Pennsylvania Supreme Court said that “[n]o product is expressly exempt” from strict liability.  Which plaintiffs tried to use, mostly unsuccessfully, to open the door to strict liability in drug and device cases in Pennsylvania.  But Tincher is actually quite clear because that quoted language is followed by:  “but see Hahn v. Richter, 543 Pa. 558, 673 A.2d 888 (Pa. 1996) (manufacturer immune from strict liability defective design claim premised upon sale of prescription drugs without adequate warnings.”  Tincher, 104 A.2d at 382 (emphasis added).  “Therefore, nothing in Tincher reopens the door to strict liability claims for prescription drug or prescription medical devices, a door Hahn had firmly closed.”  Rosenberg, at *6.

Based on its analysis, the Rosenberg court dismissed plaintiffs’ strict liability claims, including for manufacturing defect, with prejudice.  Id. at *8.  However, it also concluded that the issue met the requirements for certification for interlocutory appeal.  The issue is a controlling question of law on which there is “substantial ground for difference of opinion,” and deciding the issue now will conserve resources and avoid protracted litigation.  Id. at *7.      There is a chance the Third Circuit will in turn certify the question to the Pennsylvania Supreme Court (federal district courts can’t do this) and we’ll finally have an answer as to comment k and both medical devices and manufacturing defects in Pennsylvania.  Now, if only someone could answer whether the “s” or the “c” is silent in scent?

We’ve repeatedly advocated that defendants try turn the e-discovery tables on plaintiffs whenever possible – particularly in MDLs where discovery is flagrantly one-sided – by going after plaintiffs’ social media information.  In just about every case involving allegations of personal injuries, social media will have admissions by plaintiffs concerning their conditions and activities that concern and often contradict their claims.  Heck, we even have a cheat sheet with over 100 favorable cases requiring personal injury plaintiffs to produce material posted on Facebook, MySpace (that used to be a thing), Twitter, Snapchat, and even fitness watch data.

We got our hands on a recent public filing in the Taxotere MDL that details how such a strategy can force MDL plaintiffs to be on the receiving end of, if not a fair share, then at least a decent share of ediscovery.  Taxotere has always struck us as a good candidate for a plaintiff-focused ediscovery strategy because the drug is used in chemotherapy cancer treatments and – as if this wasn’t a notorious side effect – causes hair loss.  E.g., In re Taxotere (Docetaxel) Products Liability Litigation, 220 F. Supp.3d 1360, 1361 (J.P.M.L. 2016).  Since Taxotere focuses on appearance, and so does much of social media, ediscovery against plaintiffs’ electronically stored information (“ESI”) would be both highly relevant, and extremely proportionate.

Plaintiffs dish out ediscovery in every MDL.  Can they take it?

Apparently not – at least not very well.

According to the defendant’s filing, spoliation (either by failing to preserve or actively deleting) relevant social media ESI approached the scale of a plaintiff-side modus operandi in Taxotere.  From the beginning of the Taxotere MDL, defendants sought discovery of plaintiff-side ESI.  These efforts started with an early case management order (PTO 49) approving plaintiff fact sheets that also specifically incorporated production of such ESI.  PTO 49 was accompanied by a 20-page “ESI Protocol,” applicable to all parties in all cases.  Critically, nothing in either PTO 49 or the accompanying protocol was limited to the defense ESI production (although, realistically, some provisions were highly unlikely to apply to individuals).

That’s the first step defendants must take.  From the beginning, discovery must be a two-way street, and the plaintiffs’ MDL discovery obligations must explicitly include ESI.  Plaintiffs, as well as defendants, should have to comply with ESI-related litigation holds.  In Taxotere, that order went into effect in July, 2017.

By the way, if you want to follow along with the Taxotere saga at home, the Taxotere MDL may be found here on PACER.

Most Taxotere plaintiffs did what MDL plaintiffs normally do, which is nothing, or as close to nothing as they can get away with.  In so doing, however, they violated the in-place court order, usually by filing fact sheets that did not even purport to include ESI.  According to defendants, by October, “[o]f the 1,179 Plaintiffs who had submitted a PFS . . ., only 21 had produced ESI.”

Taxotere defendants did not allow this plaintiff-side passive-aggressive approach to MDL discovery to continue any longer.  Motion practice produced another case management order (Pre-Trial Order (“PTO”) 71A), in January, 2018, specifically addressing the MDL plaintiffs’ ESI discovery failings:

Concerned that certain Plaintiffs in this MDL do not appear to have adequately and timely produced responsive electronically stored information (“ESI”) as required by the Plaintiff Fact Sheet (“PFS”), the Court enters this Order governing Plaintiffs’ identification, preservation, collection, and production of ESI.  The Court also orders all Plaintiffs and their counsel to review and familiarize themselves with the revised “Guidance Regarding Potential Sources of Electronically Stored Information,” attached here as Exhibit A.

Id. at p.1 (emphasis added).  We’re also attaching the ESI “guidance” that was an exhibit to PTO 71A.  There’s no reason to reinvent the wheel in each MDL.

Taxotere PTO 71A put plaintiffs squarely behind the 8-ball on ESI discovery.  It applied to “all plaintiffs” and “all document requests.”  Id. ¶ 1.  It covered “any” social media from “five (5) years prior to [a plaintiff’s] docetaxel treatment” onwards.  It provides a good definition of plaintiff-side social media that must be produced:

(i) any email accounts used by plaintiff; (ii) any electronic devices used by plaintiff (e.g., desktop or laptop computers, tablets, mobile phones, digital cameras); (iii) any other hardware storage devices used by plaintiff (e.g., external hard drives, memory cards, USB or thumb drives, CDs/DVDs); (iv) any social media used by plaintiff (e.g., Facebook, Instagram, LinkedIn, Twitter, MySpace, YouTube, Pinterest, or other online collaboration tools such as Google+ or Yahoo! groups); (v) any website where a plaintiff made online postings (e.g., on a blog, message board, etc.); (vi) any cloud storage used by plaintiff (e.g., DropBox, Microsoft Office365 Account, Google Drive, iCloud, Amazon Drive, etc.).

Id. ¶2.  Again, don’t reinvent the wheel – but social media is constantly evolving, so do keep up to date on new forms of social media that might need to be added.  The order even defined what a “reasonably diligent” ESI search entailed, so plaintiffs couldn’t continue avoiding discovery by playing dumb:

Reasonably diligent searches may require running search terms; reviewing files, communications, videos, and photographs; or otherwise conducting an actual, physical search of the sources.  Plaintiff’s counsel shall take an active role in identifying, preserving, collecting, reviewing, and producing all responsive ESI.

Id. ¶3.

PTO 71A included 15 specific search terms that plaintiffs had to use.  Id. ¶4.  Plaintiffs were required to “produce all responsive ESI in a manner that preserves any metadata.”  Id. ¶5.  In addition to producing the ESI itself, the court required a “written statement” signed by both plaintiff and counsel and subject to Fed. R. Civ. P. 26(g)(3) (concerning discovery sanctions), providing:

a. A description of any employer-owned email accounts, other individuals or other locations, and resources where responsive ESI may exist; and

b. A description of unique, non-duplicative ESI within the scope of discovery that was lost or destroyed and whether plaintiff used any consumer backup tools (e.g., Carbonite, Backblaze, Crashplan, etc.).

Id. ¶6.

The “guidance” accompanying the Taxotere PTO 71A included a series of instructions to plaintiffs’ counsel on how to obtain their clients’ compliance with ESI discovery.  It discussed:

  • That “reasonable inquiry” is required to avoid sanctions.
  • Where to look and what to look for – especially photographs, emails, text messages, and social media posts.
  • Providing clients with a source of technical expertise (a “tech nerd”) to facilitate the inquiry.
  • Overcoming “pushback” from recalcitrant clients.
  • What clients did when they replaced or upgraded their hardware, and what they will do in the future.
  • That clients must search old hardware and abandoned social media accounts.
  • Preservation of metadata.
  • Time limits and relevancy limits to searches.

In short, ediscovery against plaintiffs in Taxotere was no joke.  Plaintiffs – and their counsel − were actually expected to do work in responding to discovery.

Still the Taxotere plaintiffs resisted, disobeyed, and withheld information.  Their failure to comply with discovery was particularly blatant concerning an on-line support group (“Taxotears”) that many of them belonged to.  Such product-specific online groups are common, and thus relevant in many MDLs.  Plaintiffs refused even to identify the members of this group.  The defendants didn’t give up, and their pursuit of plaintiffs’ discovery evasions led to entry of another discovery order in May, 2018.

The PSC will identify every Plaintiff in this Multidistrict Litigation who was or is a member of the Taxotears group.  That information will be provided to [defendant] no later than [a date certain]. . . .  [T]he names of non-Plaintiff members on that list may be redacted by the PSC.

Counsel for each Plaintiff who is identified as a current or past member of the group is to be notified by the PSC of the fact that their client’s name is on that list and the PSC is to provide counsel with a copy of this Discovery Order.

May, 2018 Order at 1.  Then counsel were required to to back and check those names against plaintiff fact sheets “to identify Plaintiffs whose Plaintiff Fact Sheets may be deficient with respect to information regarding their membership in the Taxotears group.”  Id. at p.2.  The court also entered a “preservation order” against plaintiffs:

All Plaintiffs are hereby specifically ordered by the Court to retain and preserve any and all materials to which they have access through the [support] group and to refrain from any efforts to dispose of or delete any emails, posts or other electronic information sent or received by them or accessible to them by virtue of their membership in that group.

Furthermore, any Plaintiff who is a current member of the [support] group is hereby prohibited from ending her membership in that group until further order of the Court.  This order is intended solely to preserve the status quo and the ability of every Plaintiff member and/or her counsel to continue to have access, to whatever extent access is possible, to information available to members of the [support] group.

Id. pp.2-3.  Defendants also were granted the right to take depositions to understand how the support group operated and what discoverable material it had.  Id. at p.3.  Not a single one of those plaintiffs thereby identified had produced the required ESI in her original fact sheet.

Defendants kept pushing their right to take ediscovery, and plaintiffs kept resisting.  According to defendants, they made blatantly incomplete disclosures and deliberately deleted metadata, in direct defiance of the court’s instructions.  Evidence that counsel may have advised plaintiffs – or that plaintiffs may have so understood such advice – to delete or hide ESI led to an in camera review order on August, 2018.  One of the founders of the support group left the country and thereafter tried to avoid responding to ESI and other discovery.  In October, 2019, the court ordered her deposition and production of ESI.

Actual sanctions started being imposed.  See In re Taxotere (Docetaxel) Products Liability Litigation, 2018 WL 4002624 (E.D. La. Aug. 22, 2018) (sanctioning plaintiff that had instructed third-party health care providers to ignore and disobey discovery; evidence of these transgressions being first discovered in that plaintiff’s social media).

She is a sophisticated plaintiff, and she is a representative plaintiff in this litigation. . . .  [Plaintiff] knew or should have known that the [fact sheet] required her to disclose [a treater] and the treatment he provided to her. . . .  [Plaintiff] has provided no explanation for why she instructed the [hospital] not to release her records.  Further, her correspondence with [the treater] about [defendant’s] request for his records demonstrates that she has encouraged at least one other potential witness to be less than forthcoming in this litigation.

Id. at *4.  That plaintiff had to pay the defendant’s fees and costs “incurred” due to her discovery breaches, produce “any relevant information” she was still concealing – specifically including all records from the treater in question – and be redeposed “on the evidence she withheld.”  Id.

The Court will allow this sanction to serve as a warning . . . to any other plaintiff who might be considering adopting evasive tactics like those discussed in this opinion.  If the Court learns that any other plaintiff has intentionally withheld relevant information that should have been produced in a PFS or in response to a request by Defendants, the Court will impose severe sanctions, which may include dismissal with prejudice.

Id.  See also In re Taxotere (Docetaxel) Products Liability Litigation, 2018 WL 6697113, at *2 (Mag. E.D. La. Dec. 20, 2018) (denying reconsideration of sanctions against plaintiff who admitted “that her production [of ESI photographs] was less than complete”).

In November, 2018, a new, streamlined protocol to dealing with the many Taxotere plaintiffs who continued to violate PTO 71A was put in place, denominated PTO 85.  That order “only applie[d] to PTO 71A and privilege log deficiencies alleged by the Defendants.”  Defendants could file deficiency notices within 30 days of the PTO 71A compliance deadline, and plaintiffs had 30 either to “cure the deficiency,” dispute the deficiency, or dismiss their cases.  Taxotere PTO 85 ¶3.  Telephonic hearings with a magistrate judge are scheduled every 60 days, with sanctions following failure to comply with orders.  Id.  ¶¶4-1.

The other notable thing that we noticed going through the Taxotere MDL docket was the large numbers of orders dismissing plaintiffs’ cases.  There are hundreds, maybe thousands, of them on the docket.  This constant flow of dismissals is a strong indication that the defense strategy of making all MDL plaintiffs comply with real discovery requirements is having the desired effect.  We know from bitter experience that most MDL cases are garbage, and if those plaintiffs are flushed out and forced to justify their lawsuits, they won’t bother.  So, make them work, the earlier the better.  Indeed, there have been so many Taxotere dismissals that the court even had to enter a pre-trial order (PTO 87) just to standardize the procedure for plaintiffs filing voluntary dismissals.  Ediscovery for defendants in Taxotere thus appears to be playing a significant role in getting meritless cases off of the docket – which is the number one priority of defendants in most mass tort MDLs.

This is the second in a two-part series on attorney-client privilege and work product protection.  We did not plan it this way, but our recent This Is Why Board Presentations Are Privileged And Protected blogpost generated a lot of interest, and the Pennsylvania Supreme Court issued an important opinion last week on these topics, so we are going to keep it rolling.  If anything, today’s scenario is even more common in day-to-day practice:  Do attorneys waive attorney-client privilege or work product protection by forwarding attorney communications and/or work production to outside consultants?  The answer is that the privilege and protection can attach, but they can also be waived under rules that everyone should understand.

The case is BouSamra v. Excela Health, No. J-80-2018, 2019 WL 2509384 (Pa. June 18, 2019), which involved a hospital’s investigation of accusations that certain physicians had possibly performed unnecessary surgery.  Id. at *1-*2.  In the midst of the investigation, the hospital’s General Counsel retained a public relations firm to assist in managing the anticipated negative press.  The hospital also retained outside counsel, who communicated by email directly with General Counsel, who then forwarded some of the emails to the PR consultant.  Id. at *2-*3.  Days later, the hospital held a press conference executing a PR plan seemingly affected by outside counsel’s advice, which led to a defamation lawsuit filed 364 days later.  Id. at *3.

Are the forwarded attorney-client communications discoverable?

The Pennsylvania Supreme Court’s answer is a firm maybe; and it all came down to waiver, for which the Court set forth some new rules.  The Court first articulated Pennsylvania’s view of work product protection.  As in most every jurisdiction, a party may not obtain discovery of “mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.”  Id. at *7 (citing Pa. R. Civ. P. 4003.3).  The essential purpose of the work product rule is “to keep the files of counsel free from examination by the opponent,” and the protection applies “regardless of whether the work product was prepared in anticipation of litigation.”  Id.  Most notably, the protection does not depend entirely on confidentiality, and an attorney does not necessarily waive it by disclosing work product to a third party.  Id. at *8.

This is the most important part of the opinion.  Whereas disclosure to a non-agent third party will generally waive the attorney-client privilege (more on that below), an attorney waives work product only through disclosure to an adversary:

Whereas disclosure to a third party generally waives the attorney-client privilege, the same cannot be said for application of the work product doctrine because disclosure does not always undermine its purpose.  As the purpose of the doctrine must drive the waiver analysis, we hold that the work product doctrine is waived when the work product is shared with an adversary, or disclosed in a manner which significantly increases the likelihood that an adversary or anticipated adversary will obtain it.

Id. (citations omitted, emphasis added).  As the Court further explained, this waiver rule’s “fact intensive structure requires evaluation on a case-by-case basis.”  Id.

Outside counsel’s emails with his or her client were clearly work product, but the Court remanded for determination of whether disclosure “significantly increased the likelihood that an adversary or anticipated adversary will obtain” the emails.  The Court provided the following guidance:

Courts tasked with analyzing similar factual situations generally consider whether the disclosure was “inconsistent with the maintenance of secrecy from the disclosing party’s adversary.”  Deloitte, 610 F.3d at 140.  In evaluating the maintenance of secrecy standard, a lower court should consider whether a reasonable basis exists for the disclosing party to believe “that the recipient would keep the disclosed material confidential.”  Id.

The level of confidentiality, however, should not be conflated with the heightened level of confidentiality required under the attorney-client privilege.   Indeed, “while the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, it should not suffice in itself for waiver of the work product privilege.”

Id. at *9 (emphasis added).  We pulled out this quote for two reasons:  First, it sets forth (at least for Pennsylvania) an objective standard—did the disclosing party have a reasonable basis to believe his or her work product would remain confidential vis-à-vis his or her adversaries.  Second, it highlights the difference between work product and the attorney-client privilege, which is ordinarily waived by voluntary disclosure to third persons.

The Court’s ruling on attorney-client privilege is equally as instructive on waiver.  Outside counsel’s communications with her or her in-house client were clearly privileged communications.  The hospital, however, waived the privilege by forwarding the emails to the PR consultant, who worked for another company, not the hospital.  Id. at *13-*14.  In a critical discussion of whether a communications with an agent of the attorney or client can waive the privilege the Court explained that the privilege is not waived where “the third-party’s presence was either indispensable to the lawyer giving legal advice or facilitated the lawyer’s ability to give legal advice to the client.”  Id. at *15.

This is important because attorneys routinely engage experts to facilitate their ability to give legal advice.  Sharing attorney-client communication with these kinds of agents should not waive the privilege in every instance.  Despite this non-waiver rule, the Pennsylvania Court held that the hospital waived the privilege because the PR consultant was not involved in formulating outside counsel’s legal advice.  On the facts as described, we think that was a close call, and we can’t help but wonder whether the result would have been different had the outside lawyers engaged the consultants, rather the client.

The key takeaways here are the waiver rules, how they operate, and how they are different from one another.  We recommend the opinion to all readers, and especially Pennsylvania practitioners.

We have written a number of times on CAFA, the Class Action Fairness Act.  The decisions and subjects we have covered can be pretty technical and even numerical. After all, one of the central provisions of CAFA has a number in it: a “mass action” is one “in which monetary relied claims of 100 or more persons are proposed to be tried jointly,” allowing removal in some situations. The Act was intended to address abuses seen in certain state courts through a particular brand of litigation tourism. In particular, in passing CAFA, the state courts of certain counties in southern Illinois were called out for allowing lots of claims from residents of many states to be pursued in places the plaintiffs’ lawyers preferred, either in purported class action or in actions that smelled a lot like class actions but were not labeled as such. (We can set aside personal jurisdiction and a bunch of other procedural considerations relevant to litigation tourism for now to focus on the CAFA part of this.) Because the enactment of CAFA did not end the plaintiffs’ lawyers desire to keep their money train rolling in their favorite places, we see two other recurring numbers in our posts on CAFA. There have been a bunch of cases from the Seventh Circuit, which includes Illinois, and from the Ninth Circuit, which includes what is now probably the plaintiffs’ lawyers’ favorite spot for mass litigation tourism, California. Thus, it is not surprising that these are the two circuit courts with “bad” decisions on what could be a critical issue in CAFA jurisprudence. Because there are two circuit courts with “good decisions,” the Tenth and Eleventh, there is a split that provides good grounds for the United States Supreme Court to take up the issue.

We have read the cert petition in Pfizer, Inc. v. Adamyan and wanted to highlight it for our readers. This case relates to more than 4200 Lipitor plaintiffs who were not swept up in the mass summary judgment rulings from the MDL that were affirmed by the Fourth Circuit. (We wrote about those decisions a bunch, including awarding top ten honors twice. See here, here, here, and here.)  The procedural history of cases at issue in Adamyan is complicated and we would refer readers to the discussion in the petition. The CAFA issue, however, is fairly straightforward and comes up in state court mass torts (or “mass actions”) fairly often. To begin to be eligible for removal as a “mass action” those 100 or more claims must be “proposed to be tried jointly.” Well, proposed by whom? If the defendant(s) propose it, then it does not count because the statute says that explicitly. If the plaintiffs propose it, then it does count. Lots of judicial ink has spilled on that, mostly on the issue of how direct the proposal has to be and what counts as being tried jointly, but there is agreement. In some instances, however, the court might make a proposal on its own to try a triple- or quadruple-digit number of claims together. Courts in places where such mass torts tend to be brought do make those proposals. They may even, like California, have procedures in place for coordinated proceedings that sound a lot like automatic “mass actions” under CAFA.

That is the issue as to which the circuits are split: what if the proposal that would otherwise trigger removal under CAFA’s mass action comes from the court sua sponte? We previously decried a decision from the Ninth Circuit that said that the removal of an action with hundreds of prescription drug claims was not removable, in part because the plaintiffs did not make a “proposal.” That case was not amenable to cert, but Adamyan is. Were we to say cert should be granted and the manufacturer should win before the Supreme Court, then our critics may have more ammunition to support what they say anyway—that we are defense hacks. Were we to say “everything the petitioner in Adamyan argues is right and persuasive,” then we might be defense hacks. Instead, we suggest that our readers read the petition with the additional question in mind of whether it makes sense that sua sponte court proposals or decisions on joint trials should count under CAFA. After all, CAFA was intended to put more cases in federal court as a way to avoid unfairness to out-of-state defendants. That is what the legislative history of CAFA made clear and the Supreme Court has recognized in prior decisions. CAFA also could have said a proposal by plaintiffs was required to trigger removal. Instead, it said that a “mass action” is one “in which monetary relied claims of 100 or more persons are proposed to be tried jointly,” and expressly excluded cases where the defendant(s) make the proposal. So, we will not argue the position that the petitioner argues well without us.

We would add a practical note, informed by experience in some of the courts that keep giving rise to decisions on CAFA removal. Plaintiff lawyers like certain courts. They may be really comfortable there for various reasons. The judges may get elected. They may know the judges. They may know the coordination or mass tort procedures well. There could be many reasons why the plaintiff lawyers like being in a certain court against a defendant from somewhere else, even with a bunch of plaintiffs from somewhere else. (A defense lawyer might have similar preferences about a court in her backyard, but defendants do not really pick where they get sued.) Knowing that an on-the-record proposal by plaintiffs’ counsel for 100 or more plaintiffs for a joint trial, even a proposal that is more implicit than explicit, might lead to removal, is it at all possible that a judge in a jurisdiction that the plaintiff lawyers favored might frame the proposal for the joint trial as sua sponte?  Sua sponte is Latin for “on his/her/its own will,” but it also can suggest suddenness.  If there is ever going to be a question about whether a judge’s order that a joint trial be held is anything other than a sudden and independent decision of the best way to handle the court’s docket in a way that is fair to all parties, then surely it makes sense that such an order can trigger removal, if the criteria are otherwise met, as long as a defendant did not push for it simply as a tool for removal. The suspicion that there was an off-the-record request from the plaintiffs, that joint trials are always ordered because they favor the plaintiffs, or some other version of a nod and wink to help one side should be reason enough to get the case out of that state court. When a single case can have 4287 plaintiffs, like Adamyan did when the defendant removed, there are plenty of reasons to view the decision on state or federal court as implicating fundamental notions of fairness. Of course, where federal courts rule as they did in the Lipitor MDL and get rid of cases en masse for lacking competent proof of causation, you can see that the ultimate choice of state or federal court can really matter.

 

It hasn’t happened yet, but just as the Supreme Court originally did with Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), the Court issued an order on June 24, asking for the Solicitor General’s views in Avco Corp. v. Sikkelee, No. 18-1140.  The Order is on SCOTUSBlog, here.

Sikkelee is an aviation preemption case, but as we have discussed before, the Third Circuit addressed the Mensing/Bartlett implied preemption rationale in twice reversing pro-preemption decisions of the relevant federal district court.

The question presented by the defendant’s certiorari petition is very simple:  “Whether the Federal Aviation Act preempts state-law design-defect claims.”  Whether the Court will ultimately decide any Mensing/Bartlett preemption issue is uncertain, because the defendant has also raised a field preemption argument unique to aviation, but we note that the defendant’s lead preemption argument is Mensing/Bartlett.

However, given that a request for the SG’s views indicates the Court’s interest in Sikkelee, and greatly increases the likelihood of an ultimate grant of appeal, preemption-interested blog readers will want to keep this case on their radar.  The SG’s position will help determine the salience of the Mensing/Bartlett aspect of any potential appeal.

The Court set no deadline for the SG to respond, which is usual.

We aren’t exactly breaking news by saying experts are extremely important.  Even make or break.  That’s why everyone – on both sides – want the best.  And, in more old news, doctors are expensive.  Doctors who serve as experts in complex mass tort litigation can be really expensive.  But, based on our opening supposition, we are willing to pay.  At least we are willing to pay to hire our own experts, again because we want the cream of the crop.   But, what about plaintiffs’ experts?  Our hope is that they are a step below our experts.  Either on paper – their credentials aren’t as impressive – or in practice – their opinions are deficient or flawed.  So when it comes time to pay for plaintiffs’ expert’s time at deposition, their expert’s fee can be a hard pill to swallow.  But, often there isn’t much that can be done.  If plaintiffs’ expert’s fees are comparable to our expert’s fees, complaining about it isn’t going to get you very far.  It may actually do more harm than good in front of the judge.  Nobody likes a whiner.  But sometimes, there really is something to complain about.

Which was definitely the situation in Carver v. AMS, 2019 U.S. Dist. LEXIS 101687 (SDWV Jun. 17, 2019), a case in the AMS Pelvic Repair System MDL.  Plaintiffs’ expert submitted an invoice asking defendant to pay him in advance of his deposition for four days of testimony at the exorbitant flat rate of $18,000 per day.  Id. at *6.  Wow.  If you assume even 8 hours per day, that’s over $2000 per hour.   Defendant, rightfully, refused and offered to pay $750 per hour without prepayment.  Id.

It was up to the court to decide what was a “reasonable fee,” which is what is required by Fed. R. Civ. P. 26(b)(4)(E)(i).  The first thing the court did was strike the request for a flat fee altogether.  There has to be some “reasonable relationship between the services rendered and the remuneration” sought.  Id. at *7 (good string cite of cases on this point).  In other words, an hourly rate for actual hours spent.  The court next went on to list 8 factors to be considered in determining if a fee is reasonable.  We set them out here for your convenience:

 (1) the witness’s area of expertise, (2) the education and training that is required to provide the expert insight that is sought, (3) the prevailing rates for other comparably respected available experts, (4) the nature, quality and complexity of the discovery responses provided, (5) the cost of living in the particular geographic area, (6) the fee being charged by the expert to the party who retained him, (7) fees traditionally charged by the expert on related matters, and (8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26.

Id. at *8.  It was plaintiffs’ burden to establish reasonableness so they set forth their expert’s credentials and documents showing what other experts in mesh cases charged for deposition time.  Notably, they also documented what defendant’s expert in this case was charging for his time, $900 per hour.  Id. at *9-10.  Like we said at the outset, this is really a goose/gander issue.  Unless there is some measurable difference between plaintiffs’ expert and defendant’s expert, it is going to be difficult for a judge to require different fees.   It was also important to the judge that plaintiffs’ expert had charged plaintiffs $900 per hour for case review.  Another factor in favor of applying a goose/gander rule.

While the court felt $900 per hour was high, it wasn’t unreasonable in light of both what defendant’s expert was charging and what plaintiffs’ expert charged plaintiffs.  Id. at *12.  And, prepayment was not required, as per local practice.  The result is likely a reduction by almost half what defendants were being asked to pay.

Experts are expensive.  But if plaintiffs’ expert’s fees make you do this – you might want to get the court involved.

First, we apologize to our readers for not publishing this post earlier.  It contains new information that we’ve known about for a couple of weeks, but we felt we had to keep it under wraps temporarily until Bexis filed an amicus curiae brief (last Friday) in one of the cases we discuss.  Just as we don’t want to do the other side’s research for them, we likewise don’t want to give them extra time to respond.

Last year, in the wake of two extremely adverse appellate personal jurisdiction decisions, Hammons v. Ethicon, Inc., 190 A.3d 1248 (Pa. Super. 2018), and Webb-Benjamin, LLC v. International Rug Group, LLC, 192 A.3d 1133 (Pa. Super. 2018), we wrote a post bemoaning that, on personal jurisdiction issues – both general jurisdiction and specific jurisdiction – it looked like Pennsylvania law was “going off the deep end” in favor of allowing litigation tourism.

Since then, for a number of reasons, the prospects for Pennsylvania (and, in particular, Philadelphia) becoming a nationwide Mecca for litigation tourism have thankfully eased a bit.  First, in Hammons the Pennsylvania Supreme Court granted further appellate review, meaning that the last word regarding Pelvic Mesh litigation tourists in Pennsylvania has yet to be written.  Not only that, in the course of preparing the aforesaid amicus brief, we learned that we had been wrong – but in a good way – in our “Simple Question” post about that case.  Most of that post was about the singular holding in Hammons to impose the burden of proof on the defendant challenging jurisdiction rather than on the plaintiff asserting it.  We pointed out that this result was contrary to multiple prior decisions by the Pennsylvania Superior Court, and diverged as well from universal federal practice in deciding personal jurisdiction issues.  In that post we cautioned, however:

[N]either the United States Supreme Court nor the Pennsylvania Supreme Court appears to have decided the burden-of-proof question in the specific context of personal jurisdiction.

On further review….

We were wrong.  It turns out that the Pennsylvania Supreme Court has decided who bears the burden of proof when personal jurisdiction is at issue – and that court placed the burden squarely on plaintiffs back in 1966.  In Frisch v. Alexson Equipment Corp., 224 A.2d 183, 187 (Pa. 1966), the record lacked any evidence that the cause of action arose from the defendant’s activity in Pennsylvania.  The Pennsylvania Supreme Court held that the omission required dismissal of the action:

The burden was upon Frisch [the plaintiff], as a prerequisite to the use of the “long arm” provisions of [the statute] to secure In personam jurisdiction, to establish that the action which he instituted arose out of “acts or omissions” of [defendant] within Pennsylvania; neither impliedly nor expressly has such been shown and Frisch [the plaintiff] has not sustained his burden.

Id. at 187 (emphasis added).  We missed it the first time around because we only searched for “personal,” and not “personam,” which is a more common word in older cases.  We’ve also discovered that, in analogous venue situations, the party that “selects the county of trial . . . shall bear the burden of proving venue is proper.”  Commonwealth v. Gross, 101 A.3d 28, 33 (Pa. 2014).

As for the United States Supreme Court, while there is, indeed, no opinion of the Court expressly placing the burden of proof on plaintiffs, J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873 (2011), comes really close.  First Nicastro’s the four-justice plurality found that “[r]espondent [plaintiff] has not established that [defendant] engaged in conduct purposefully directed at [the forum].”  Id. at 886 (emphasis added).  That sure sounds like they thought “establishing” the requisite conduct was the plaintiff’s job.  Two additional justices explicitly said just that – the “plaintiff bears the burden of establishing jurisdiction.”  Id. at 890 (Breyer and Alito, JJ. concurring).

So Hammons is further out on a weaker limb than we thought in our initial post.

Further, three subsequent Superior Court decisions have, ignoring Hammons, continued to impose the ultimate burden of proof on plaintiffs in personal jurisdiction cases.  See Vaughan v. Olympus America, Inc., ___ A.3d ___, 2019 WL 1549345, at *3 (Pa. Super. April 10, 2019); Seeley v. Caesars Entertainment Corp., 206 A.3d 1129, 1133 (Pa. Super. 2019); Calabro v. Socolofsky, 206 A.3d 501, 505 (Pa. Super. 2019).  The inference is unmistakable that the rest of the Superior Court bench has shied away from Hammons’ problematic burden of proof holding.

So on the specific jurisdiction front, developments have made us more optimistic than we were before that Hammons will not stand.

We can say the same about the Webb-Benjamin jurisdictional issue − whether Pennsylvania may statutorily impose “general” jurisdiction on any foreign corporation that registers to do business in the Commonwealth.  See 42 Pa. C.S. §5301(a)(2)(i).  Since our “deep end” post last year:  (1) the Superior Court granted en banc review, not in Webb-Benjamin itself, but in another case presenting the identical issue, captioned Murray v. Federal Signal Corp., Nos. 2105-11, EDA 2016.  The en banc court can overrule panel decisions like Webb-Benjamin.  (2) A more recent Superior Court decision, Seeley, cited above, reached the opposite result from Webb-Benjamin.  One of the defendants in Seeley was “a registered business in Pennsylvania,” but the court nonetheless rejected any per se consent rule.  “Defendants have clearly not consented to being sued in Pennsylvania, as is evident from their filing of preliminary objections on the basis of lack of personal jurisdiction.”  206 A.3d at 1133 n.9.  So, just as with the burden of proof issue in Hammons, a split of authority now exists in Pennsylvania Superior Court binding precedent on jurisdiction by consent.

But there’s more.  What caused us to write this post at all is the recent decision in In re Asbestos Products Liability Litigation (No. VI), ___ F. Supp.3d ___, 2019 WL 23997381 (E.D. Pa. June 6, 2019) (“Sullivan”), declaring §5301(a)(2)(i) unconstitutional to the extent it imposes “general” jurisdiction as a condition of foreign corporate registration, and generally disagreeing with just about everything that Webb-Benjamin held.  Plainly, we were also too pessimistic in our “Youse Guys” post when we declared, “Forget about convincing a district court; nothing’s going to happen on the federal front until the Third Circuit reconsiders and overrules Bane [v. Netlink, Inc., 925 F.2d 637 (3d Cir. 1991)].”

Judge Robreno, in his role as the supervising judge for the long-running (#4) Asbestos MDL in the Eastern District of Pennsylvania, wasn’t inclined to act, as we described it, like a “lemming[] over the cliff,” and to follow the doomed Bane decision – unlike the Superior Court in Webb-Benjamin and the half-dozen Pennsylvania federal district court decisions we mentioned in Youse Guys.

Instead, Sullivan held, first, that Bauman “brought about a sea change in the jurisprudence of exercising general personal jurisdiction over a foreign corporation.”  2019 WL 23997381, at *1.  Bauman enforced “a fairly straight forward bright-line test” for general jurisdiction in this situation, limited to a maximum of two jurisdictions, a corporation’s state of incorporation and its principal place of business.  Id. at *4.  Because “a foreign corporation’s ‘substantial, continuous, and systematic’ course of business in a state cannot be the basis for general personal jurisdiction,” the question to be decided was:

[D]oes a foreign corporation knowingly and voluntarily consent to general jurisdiction in a state by registering to do business under a statutory regime that conditions the right to do business on the waiver of general jurisdiction?

Id. at *5.

Sullivan’s answer:  After Bauman, absolutely not.

Sullivan first acknowledged what our post-BMS jurisdictional “cheat sheet” demonstrates, that after (and, indeed, before) Bauman, the overwhelming majority of precedent nationwide refuses to permit general jurisdiction by consent:

Most courts that have confronted the issue have determined that their state registration statutes do not imply consent to general jurisdiction because, inter alia, the language of the statutes are not explicit in this regard.  These courts hold that, at a minimum, any consent to general personal jurisdiction cannot be implied from the mere act of registration, and therefore, the purported consent is not knowingly given.

Id. at *5.  But, Pennsylvania was “unique.”  Its statute is the only one in the country to codify a “general” jurisdiction waiver requirement.

A state statute, however, cannot prevail over federal Due Process principles enshrined in the Fifth and Fourteenth Amendments to the federal constitution.  If it were otherwise, “other states would only need to add language to their registration statutes spelling out the jurisdictional consequences of registering to do business, while at the same time giving no real alternative to registration.”  Id. at *6.  That can’t happen.  “[A] mandatory statutory regime purporting to confer consent to general jurisdiction in exchange for the ability to legally do business in a state is contrary to the rule in [Bauman] and, therefore, can no longer stand.”  Id. at *7 (footnote omitted).

Nor can the “archaic” “fiction” of “consent” defeat the Due Process limitations on general jurisdiction.  Id. at *5-6.  The oxymoron of coerced consent, premised on a statute demanding waiver of defenses to general jurisdiction or else being considered an outlaw in the jurisdiction, creates a “Hobson’s choice” that cannot be “consent.”  Id. at *7.

[T]he Pa. Statutory Scheme conditions the benefit of certain privileges of doing business in Pennsylvania upon the surrender of the constitutional right, recognized in [Bauman], to be subject to general personal jurisdiction only where the corporation is “at home.”

Id.  That is the very definition of an unconstitutional condition.  A “state cannot condition a benefit generally available to others in the state on the surrender of a constitutional right.”  Id. at *8 (citations omitted).  “[T]he logical foundation of the unconstitutional conditions doctrine applies with equal force in any case in which the enjoyment of a government-sponsored benefit is conditioned upon a person’s nonassertion of any constitutional right.”  Id. (citations and quotation marks omitted).

[O]ut-of-state corporations seeking to exercise their right to engage in commerce in Pennsylvania have only two unsatisfactory choices:  (1) register and therefore consent to general personal jurisdiction in all cases; or (2) not register and be denied the opportunity to “do business” in the state.  Given the fundamental importance of the ability to engage in interstate commerce, this Court concludes that the mandatory nature of the statutory consent extracted by [§5301(a)(2)(i)] is, in fact, functionally involuntary.  As a result, it is not true consent at all.

Sullivan, 2019 WL 2399738, at *8 (citation omitted).  Modern “consent” in personal jurisdiction cases is limited to case-specific actions by defendants.  Id. at *9 (“limited to the parties to the transaction or discrete disputes”).

Thus, the Pennsylvania legislature could not create “general” jurisdiction in Pennsylvania on lesser facts than Bauman’s “at home” standard:

[T]he Pa. Statutory Scheme allows Pennsylvania to impermissibly extract consent at a cost of the surrender of a constitutional right.  Absent voluntary consent, [Bauman] teaches that a corporation is only subject to general jurisdiction where it is “at home.”  The Pa. Statutory Scheme impermissibly re-opens the door to nation-wide general jurisdiction that [Bauman] firmly closed.  Therefore, the Court concludes that the Pa. Statutory Scheme violates the Due Process Clause and is unconstitutional.

Id.

Finally, Webb-Benjamin and all of the adverse federal district court precedent, relied on the pre-Bauman Third Circuit decision in Bane.  The Third Circuit itself has recognized that, “[w]hen a constitutional standard is replaced by newer Supreme Court law contrary to the law of the circuit, ‘the old standard [is] not binding’ on lower courts.”  Sullivan, 2019 WL 2399738, at *10 (quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 697-98 (3d Cir. 1991), aff’d in part, rev’d in part on other grounds, 505 U.S. 833 (1992)).

Bye-bye BaneBauman “effectively disassembled the legal scaffolding upon which Bane was based.”  Sullivan, 2019 WL 2399738, at *9.

[T]he result obtained under Bane (general personal jurisdiction over a foreign corporation by statutory consent) cannot stand under the new constitutional standard adopted in [Bauman] (general personal jurisdiction only where the foreign corporation is at home).  Thus, this Court is bound to apply the new [Bauman] standard not withstanding previous circuit law.

Id. at *10.

We’ve discussed before why expansive general jurisdiction is absolutely critical to litigation tourism in asbestos cases – since asbestos plaintiffs’ litigation model depends on indiscriminately naming scores of defendants.  Unless asbestos plaintiffs sue in their own home states (a perfectly reasonable requirement, in our opinion), only a small percentage of those defendants will be “at home” in any other jurisdiction.  Thus, it is not surprising that a tour de force decision like Sullivan would arise from the Asbestos MDL.  For the same reasons, it is a certainty that Sullivan will be appealed to the Third Circuit, and as we hoped in our Youse Guys post, that court will finally get the chance to reconsider Bane in light of Bauman.  Even better, such reconsideration will be on the basis of the powerful Sullivan rationale.  Thus, as we said above, we are feeling more optimistic about this aspect of the Pennsylvania personal jurisdiction wars as well.  Maybe we can help haul Pennsylvania out of the jurisdictional deep end after all.

 

Late last year, we published two posts (here and here) about the gutsy and laudable Daubert decision in the Mirena IIH (idiopathic intracranial hypertension) MDL, in which Judge Paul Engelmayer of the Southern District of New York excluded all seven of the plaintiffs’ general causation experts.   At that point, we assumed that it was a foregone conclusion that the plaintiffs’ claims would be dismissed—that no plaintiff could get to a jury without general causation evidence. But the plaintiffs weren’t going down without a fight, as set forth in today’s case, In re Mirena IUS Levonorgestrel-Related Prods. Liab. Litig. (No. II), 2019 WL 2433552 (S.D.N.Y. June 11, 2019)

After the Daubert decision was issued, Bayer moved for summary judgment, arguing that: 1) expert testimony is required to establish general causation in a pharmaceutical product liability case; and 2) even if lay testimony could, in theory, establish general causation, there wasn’t such testimony on the record of the case. Mirena, 2019 WL 2433552 at *1.   In response, the plaintiffs argued that 1) general causation is not a required element of proof; 2) expert evidence is not required to establish general causation; 3) a factfinder could find general causation through non-expert evidence in the record; and 4) granting summary judgment without case-specific discovery would violate the Seventh Amendment to the Constitution. Id.

The court wasn’t having any of it. First, the court emphasized that New York law requires a plaintiff to prove both general and specific causation, and that, in the absence of admissible evidence of general causation – that a product can cause a particular injury – there is no basis for a conclusion that the product caused the injury in a particular plaintiff. Id. at *9. In response to the plaintiffs’ argument that that the laws of certain states did not include this requirement, the court stated, “. . . [P]laintiffs’ portrait of state law as absolving a products-liability plaintiff from a need to establish general causation . . . is simply wrong.” Id. To the contrary, “all relevant jurisdictions require some evidence of general causation in products liability cases involving complex . . . medical issues.” Id.

Next, the plaintiffs argued that expert testimony is not always required to establish general causation – that general causation can be established by “alternative forms of evidence, for example, a corporate admission.” Id. at * 11.   The court conceded that, while “summary judgment is . . . commonly granted . . . where plaintiffs fail to adduce reliable expert testimony establishing general causation,” courts, including the Second Circuit “have left open the possibility that . . . lay evidence could possibly substitute for expert testimony.” Id. at *12-13.   But the court held that the plaintiffs’ argument – that a lay factfinder could connect snippets of the expert testimony the court had already excluded to piece together a general causation conclusion – was an attempted “end run around Rule 702” and the court’s Daubert ruling, and was “unsustainable.” Id. at *13. Nor, contrary to the plaintiffs’ argument, had “admissions” by the defendant’s own experts established general causation; rather, “the concatenation of scientific propositions from which plaintiffs construct a causal chain [fell] far short of a . . . corporate admission of general causation.” Id. at *20 (internal punctuation and citation omitted).

The plaintiffs also argued that the label warnings on a different contraceptive product containing the same hormone, LNG (levonorgestrel), created a fact issue on the issue of general causation and defeated summary judgment.   The court rejected this argument as well, noting that the other product was a subdermal implant, not an intrauterine device, and produced substantially higher systemic levels of LNG than did Mirena. Moreover, the other product’s label did not reflect a determination by FDA that LNG caused IIH but merely that IIH had “been reported on rare occasions” in users of the product.

Finally, the plaintiffs argued that granting summary judgment before plaintiff-specific discovery took place would be unconstitutional because it would violate the Seventh Amendment’s right to a jury trial. The court “easily dispatched” this argument, holding that it was “long established that summary judgment does not violate the Seventh Amendment,” notwithstanding the court’s “decision to stage discovery, consistent with the guidance of the JPML, so as to front-load discovery on the potentially dispositive issue of general causation.” Id. at *24.

We love this decision, and we congratulate Bayer on this final nail in the coffin of this MDL. In a world in which so much seems broken these days, the progression from the Daubert decision to this summary judgment decision is just the way this is supposed to work. Experts are supposed to be excluded when their methodologies are not reliable.   And cases are supposed to be dismissed when plaintiffs can’t prove causation. We wish it happened more often.  And we’ll keep you posted when it does.