The unwieldy and sometimes unfair nature of multidistrict litigation has become a recurring theme on the DDL Blog. We have long commented on the “if you build it, they will come” dynamic that leads to hundreds or thousands of cases gathered, filed, and then parked in an MDL—all hoping to do as little
Discovery
Court Says No Way To Medical Device Plant Inspection

We came across something the other day that we don’t see very often, or really ever. The plaintiff in a medical device case served a request to inspect the two defendants’ manufacturing facilities, claiming that he was entitled to observe the premises where the device was made. Not so fast, said the defendants. And with…
Plaintiff Lacked Good Cause for Tardy Deposition of Mesh Implanter

Two weeks ago we wrote about a pelvic mesh case that crumbled on remand due to the plaintiff’s failure to depose the implanting physician. The importance of the implanting physician is self-evident. Because the plaintiff bears the burden of proving the elements of torts, including whether a different warning would have prompted the implanter to…
Setting The Protocol For The Ex Parte Party

There is quite a bit of discussion these days about protocols. Using good judgment in setting how often you should wash your hands, what measures should be in place for a certain type of business to operate, how often to test for infection and/or antibodies, and many other protocols seems like a no-brainer. We will…
Plaintiff Has To Pay Retail For Medical Device Exemplars

We’re writing a quick-hit post today on a topic that comes up often in medical device litigation, but rarely results in a court order—what happens when the plaintiffs want an “exemplar” medical device? How do they get one and who pays for it?
We’re not talking here about the medical device that was actually used…
Certification of Complete Document Production: Completely Unnecessary

We recently gave a talk on things in MDLs that drive us crazy. Discovery is front and center. The asymmetry of discovery is a huge source of unfairness. If plaintiffs have their way, all discovery would be about company conduct, and we’d never get to find out if those 8,000 plaintiffs used the product or…
Can Plaintiffs Preempt the Preemption Defense By Demanding Preemption Discovery?

The whole business of discovery in civil litigation is dreary and depressing. In a mass tort, a defendant can rack up defense verdicts yet still incur discovery costs that exceed the damage amounts sustained by defendants found liable in other torts. Little wonder that the mass of defense lawyers in mass torts lead lives of…
California Superior Court Refuses to Allow Discovery in Aid of “Litigation Tourism” in Consolidated Xarelto Litigation

With one glance at the calendar, regular readers of this blog will have been able to predict the content of these prefatory paragraphs, later to be (tenuously) tied to today’s case. On Monday and Tuesday, as we have for nearly twenty years, we attended the annual Westminster Kennel Club Dog Show, the second-oldest continuous sporting…
As If Discovery Were Not Difficult Enough, Now This

When Congress enacted HIPAA and its Privacy Rule in the mid-1990s, it was a big deal. Healthcare providers surely protected patient privacy in the pre-HIPAA days, but the federal statute gave them a standard set of rules with which to comply and a uniform referent against which to gauge their privacy practices. All told, HIPAA’s…