This post is from the non-Dechert side of the blog.
While the recent Pennsylvania Superior Court Risperdal decision is not a defense victory, it is certainly not as favorable for plaintiffs as they are making it out to be. While several issues were presented for appeal in Stange v. Janssen Pharms., Inc., 2018 Pa.
Interestingly, it’s a case that is almost a year old that has us thinking about litigation tourism post Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017). We know that plaintiffs’ forum shopping gamesmanship isn’t over. It’s just gotten a lot more difficult now that the Supreme Court has said non-resident plaintiffs
We remember how, shortly after the atrocious decision in Johnson & Johnson v. Karl, 647 S.E.2d 899 (W. Va. 2007), rejecting altogether the learned intermediary rule, litigation tourists visiting West Virginia argued that Karl represented that state’s “public policy” and therefore the learned intermediary rule could not apply even to their out-of-state cases under
We thought we understood statutes of limitations and choice-of-law rules in New Jersey. Until yesterday. That was when we read the New Jersey Supreme Court’s opinion in McCarrell v. Hoffmann-La Roche, Inc., No. 076524, 2017 WL 344449 (N.J. Jan. 24, 2017), which unhinged that state’s statute of limitations and choice-of-law jurisprudence from its own precedent and placed statutes of limitations in a special class without much explanation. And the court did all of this for the stated purpose of preserving plaintiffs’ claims and not “discriminating” against an out-of-state plaintiff’s ability to sue a New Jersey company in New Jersey, after the suit would be barred in the plaintiff’s home state.
How did we get here? Well, this is a New Jersey Accutane case, which tells you that it was contentious, as most things seem to be in that multi-county proceeding. Other than that, the facts in McCarrell are fairly typical—an out-of-state plaintiff (in this case a fellow from Alabama) who was prescribed a drug in his home state, used the drug in his home state, experienced alleged complications in his home state, and received medical treatment in his home state sued the drug’s manufacturer where the company is incorporated—in this case, New Jersey. McCarrell, at *3.
The rub in McCarrell was that the plaintiff’s claim was time barred under Alabama’s statute of limitations, but not under New Jersey’s statute of limitations, which includes a discovery rule. The choice of law therefore determined the outcome, which led the parties to contest the issue hotly in the trial court, the intermediate appellate court, and eventually the New Jersey Supreme Court.
Each court applied different rules, which is why this case is so interesting and why the Supreme Court’s opinion is so odd. We have long understood that the choice of forum does not determine the applicable substantive law. Sure, the forum’s procedural law applies, but the substantive law is determined by applying the forum state’s choice-of-law rules.Continue Reading New Jersey Supreme Court Turns Back The Clock on Statute of Limitations
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.Continue Reading Court of Appeals Applies Law of Would-Be Filing Court in Fee Dispute in Hip Implant Case Filed Directly Into MDL
This post is from the non-Reed Smith side of the blog.
Choice of law doesn’t get too much attention here at the DDL blog. That is due in some part to the fact that there really isn’t a defense-oriented position to take on it. Which state’s law should apply is a very case-specific analysis and in any given case, you might come out differently. It really depends on which state’s law is more favorable to your legal arguments in a particular scenario. The second reason it probably doesn’t get much attention from us is that in most personal injury, products liability cases, plaintiff’s home state’s law governs – the law where the injury occurred.
But what about when a plaintiff lives in one state but seeks medical treatment in another. Not to be considered disparaging of the many excellent healthcare facilities in southern New Jersey (where this blogger resides), but when you live a stone’s throw from some of the leading specialists in the country who happen to be across the state line in Philadelphia, you take that ride across the Ben Franklin Bridge. That’s not an unusual situation, making the choice of law question of interest.
In Finnerty v. Howmedica Osteonics Corp., 2016 U.S. Dist. LEXIS 123071, *2 (D. Nev. Sep. 12, 2016), plaintiff, a resident of Nevada, sought medical treatment from an orthopedic oncologist located in California. Plaintiff had cancer in his left leg that required either amputation of the leg or a total knee replacement. Plaintiff opted for the replacement and defendant’s modular replacement device was implanted. Id. At the time of surgery, plaintiff was “clinically obese.” Id. The surgery took place in March 2005 and plaintiff had no complications until 2011 – over 6 years later. Id. at *2-3. In August 2011, plaintiff started working as a shuttle driver for a car rental company. The job required him to lift luggage, weighing up to 80 pounds, on a repetitive basis. Id. at *3. In December 2011, while lifting luggage, plaintiff heard a “pop” in his left knee. During revision surgery, it was discovered that the implanted device had fractured. Id. Plaintiff continued to suffer complications and eventually his left leg was amputated.
Plaintiff sued the device manufacturer alleging failure to warn, negligence, strict liability design defect, manufacturing defect, and breach of express and implied warranty. Id. Defendant moved for summary judgment on all counts.Continue Reading An Interesting Choice of Law Question
Today’s case is also about statute of limitations, but we thought adding that to the title would guarantee nobody read any further. None of these are what we’d call “page-turning” – or maybe in the blog world it should be “scroll-worthy” — topics. But, any one of them can be a game changer. When they combine to lead to a dismissal in circumstances that our readers may find themselves in, we think they are worth a mention. But we’ll make it quick.
As is so often the case, plaintiffs’ counsel gathered their clients and filed a single mass action lumping together plaintiffs from all over the country. Jaeger v. Howmedica Osteonics Corp., 2016 U.S. Dist. LEXIS 16493 at *7 (N.D. Cal. Feb. 10, 2016). The defendant, again in a fairly common response, moved to sever the individual misjoined cases and to transfer them to plaintiffs’ home districts. Id. at *8. Defendant’s motion was granted. The original misjoined complaint was filed in the Southern District of Illinois. Defendant is a New Jersey corporation. Plaintiff Jaeger resides in California, where she also received the medical treatment at issue in the case. Id. at *17. Plaintiff Jaeger’s case was therefore transferred to California.Continue Reading Personal Jurisdiction and Choice of Law
This post is from the non-Reed Smith side of the blog.
It can be difficult to have a completely consistent position on choice of law issues. That’s because state law varies and sometimes you’ll find you are better served by the law of the forum state, other times by the law of the plaintiff’s home state, and sometimes by the law of the defendant’s home state. The issue, the facts, and the law all drive the parties’ preferences.
Typically, however, we tend to favor the notion that liability issues should be governed by the law of the plaintiff’s residence. That is where the alleged treatment and injury occurred, and those factors are important in any choice of law analysis. Such a rule also imposes some limit on blatant forum-shopping by plaintiffs. But what law should apply to punitive damages? This is where things can get a little fuzzy. On punitive damages, the balance of interest between plaintiff’s residence and defendant’s residence is more even – making the analysis trickier and also affording more opportunity to craft an argument for the law of the state that is more defense-friendly.Continue Reading Role Reversal – Plaintiff Asks for New Jersey Punitive Damages Law
Multidistrict Litigation – the name says it all. It is an amalgamation of related cases from multiple federal district courts across the country. Think about the journey a single case in an MDL may take. Plaintiff files in state court. Defendants remove the case to federal court based on diversity. But as soon as the
If anyone gave out prizes for the most incomprehensibly named multi-district litigation, the one currently proceeding as “In re Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation” would be right up there. Rarely have we encountered a case name with four words in a row that, without a dictionary, we didn’t know what they meant. Basically, this is product liability litigation about two dialysis solutions (Granuflo and Naturalyte) over alleged serious adverse reactions related to effects on blood chemistry.
This MDL is currently pending in the District of Massachusetts. Just after the new year the Fresenius MDL (that’s all the designation really needed) made some news with a quartet of decisions. We’ll describe them for you briefly.
First Decision
In In re Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation, ___ F. Supp.3d ___, 2015 WL 44589, at *1 (D. Mass. Jan. 2, 2015), the court denied remand to a batch of California plaintiffs. As is so often the case in removal/remand, there was a lot of gamesmanship going on. The defendant proved, to the court’s satisfaction, that the principal place of business of the target defendant, Fresenius, USA, had been its Massachusetts for almost a decade, since a merger. Id. at *2. It satisfied the relevant “nerve center” test (see here for more on that) for personal jurisdiction.Continue Reading Fresenius Potpourri