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This guest post was written by Richard G. Stuhan. Mr. Stuhan is a partner resident in the Cleveland office of Jones Day. This post is entirely his work. It, of course, represents only his views, and not the views of his clients or firm:
Attitudes toward the use of written juror questionnaires are changing…

A couple of recent federal appeals decisions in the prescription drug area, while substantively unrelated, raise the same question of the scope of federal predictions of state law in cases brought under diversity jurisdiction – whether a federal court has any business making novel interpretations of state law that purport to expand state-law liability.
The…

Mulitdistrict litigations – both federal MDLs and their state-court equivalents – sound like noble endeavors.  The concept is simple: consolidate similar lawsuits under one judge to streamline proceedings. This, in theory, avoids contradictory rulings and saves court resources. But when you pan out past the injured plaintiffs and mountains of medical records, you’ll spot one…

MDLs are supposed to follow the Federal Rules of Civil Procedure.  That’s the reminder the Sixth Circuit gave in In re National Prescription Opiate Litigation, 956 F.3d 838, 844 (6th Cir. 2020):

[T]he law governs an MDL court’s decisions just as it does a court’s decisions in any other case. . . .  Here, the relevant law takes the form of the Federal Rules of Civil Procedure.  Promulgated pursuant to the Rules Enabling Act, those Rules are binding upon court and parties alike, with fully the force of law. . . .  Respectfully, the district court’s mistake was to think it had authority to disregard the Rules’ requirements . . . in favor of enhancing the efficiency of the MDL as a whole. . . .  But MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance.  For neither §1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely hortatory in MDL ones.

Id. at  844 (citations omitted).  More recently the Civil Rules Committee made the same point in approving new Fed. R. Civ. P. 16.1:  “The Rules of Civil Procedure, including the pleading rules, continue to apply in all MDL proceedings.”  Comment to Rule 16.1(b)(3)(A).

Bad things happen – usually to defendants – when an MDL adopts practices designed to cut procedural corners that the drafters of the rules put there for a reason.

Continue Reading MDL Procedural Shortcuts Once Again Disadvantage Defendants

It could be a first-year civil procedure question:  The removability of a case to federal court is determined as of the moment of removal – nothing thereafter can defeat removal.  See, e.g., St. Paul Mercury Indemnity. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938) (a plaintiff cannot “deprive the district court of jurisdiction” “after removal” “by amendment of his pleadings”); 14A C. Wright & A. Miller, Federal Practice & Procedure §3721, at 213 (2d ed. 1985) (once “a case has been properly removed . . . plaintiff[s] cannot successfully do anything to defeat federal jurisdiction and force a remand”).

That is precisely what the petitioner in a pending United States Supreme Court matter, Royal Canin U.S.A., Inc. v. Wullschleger, No. 23-677, is asking the Court to hold.  Oral argument in the Royal Canin case is occurring today.  For more details, including copies of all pleadings, see the SCOTUSblog page.

Continue Reading Under the Radar SCOTUS Removal Issue

A notorious class-action troll took it on the chin in MSP Recovery Claims, Series LLC v. Exactech, Inc., 2023 WL 4066635 (E.D.N.Y. June 14, 2023) (“MSPRC”).  The troll’s modus operandi is to claim it has assignments of rights from certain fellow-traveling Medicare Advantage Organizations (“MAOs”) and try to turn those into class actions against targeted defendants – usually primary insurers.  A search for this plaintiff’s name (MSP) appearing in the same opinion as this assignor (Summacare) pulled up no fewer than 23 hits on Westlaw.

In MSPRC, however, this prolific litigant tried to branch out beyond its usual Medicare Secondary Payor claims into more general third-party payor (“TPP”) litigation.  That didn’t turn out well for the troll.  Indeed, MSPRC looks like the litigation equivalent of the troll being knocked out with its own club.

Continue Reading Medicare Secondary Payor Troll Bounced from MDL

In the coming weeks, there are sure to be many articles looking at what Judge Brown Jackson has written and what that might suggest about the future jurisprudence of the United States Supreme Court if she is confirmed.  We will not predict what will happen in confirmation.  We will, however, weigh in on what Judge…

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