We will not get into the details of why, but we have been thinking recently about the issue of mechanisms for shifting costs and fees. The European “loser pays” rules—into which we will not delve, either—are often cited as one of the reasons why there is so much less product liability and other personal injury
Court of Appeals Applies Law of Would-Be Filing Court in Fee Dispute in Hip Implant Case Filed Directly Into MDL
Last week, along with many of you, we attended the ACI Drug and Medical Device Conference in New York City. The quality of the presentations was uniformly high, and the collegiality and camaraderie were welcome, refreshing, and a lot of fun. There was plenty to drink. There was lots of food. Oh, and we got to see Hamilton! We should preface our comments by pointing out that we were skeptics – we knew how pricey (really, really pricey) tickets are, and we weren’t even positive we would enjoy this immensely innovative rap musical. To wit, one of our best beloved musicals of recent years was the wonderful, if short-lived, revival of Finian’s Rainbow that played the Great White Way a couple of years ago. We go for the traditional stuff, and had neither resources nor plans to spring for Hamilton.
But we got very lucky. A generous friend had bought four tickets a full year earlier in anticipation of the annual conference. And there was a last-minute cancellation. And we got to go. And it was worth all of the hype (and all of the money, if you have it). We enjoyed it so much that we came home and researched ticket availability to return with the Drug and Device Law Long-Suffering Companion. Tickets are on sale for next year, and we thought that we could avoid the crazy street prices by planning way ahead. Not so – even this far in advance, tickets (from official ticket sources, not ticket agencies) are way out of the reach of normal consumers. Sometimes, the early bird does not get the worm (or the greatest financial benefit).
And, with just a bit of creativity, we can glean the same message (among others) from today’s case. Dobbs v. DePuy Orthopedics, — F.3d —, 2016 WL 7015648 (Seventh Cir. Dec. 1, 2016), is an appeal of an attorney’s fee decision from the United States District Court for the Northern District of Illinois. (We’ll explain how it got there in a minute.) The plaintiff/appellant had direct-filed a product liability claim in the Hip Implant MDL in the Northern District of Ohio. Believing that the promised compensation was too low, he opted out of the global settlement and fired his lawyers, who had advised him to accept the global settlement, which included a 35% attorneys’ fee. (The global settlement provided one level of payment for unrepresented plaintiffs, and a second level, 35% higher, for represented plaintiffs.)
Less than two months after his lawyers withdrew their appearance, the plaintiff accepted the global settlement. Because he was considered “represented” for purposes of the settlement, he was paid the larger amount. (Not clear why he was considered “represented” when his lawyers had been fired.) His former lawyers asserted a lien on the award and sought to recover attorney’s fees. The MDL judge tried unsuccessfully to mediate the fee dispute in the Northern District of Ohio then transferred the case to the Northern District of Illinois, where the case would have been filed if the MDL had not been pending.…
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