Forum Non Conveniens

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We (in the peculiarly singular sense) last posted on the day after Thanksgiving, a day sometimes referred to as Black Friday because of the number of retailers that offer purportedly discounted prices to lure eager holiday shoppers.  We have discussed before how the moniker seems more appropriate for other historic events.  It was probably apparent from that post that shopping, particularly at brick-and-mortar stores, is not our favorite thing to do.  We do know, however, that others can be drawn to certain, packed locations by the lure of a good deal.  So too—seamless transition, huh?—can plaintiffs flock to jurisdictions where their lawyers expect a good deal from judges and juries.  Assuming subject matter and personal jurisdiction exists, an assumption we think may be less likely to be foregone in the future, the plaintiff generally gets to pick where the defendant will have to show up to see what kind of deal it can get.

Once jurisdiction exists, there are two vehicles for a defendant to move a case.  The first often has less utility—a motion to transfer to another court within the same state (or to a different federal court when the case is in federal court, which plaintiffs generally try to avoid in the first place).  Consolidation of cases involving the same product through the application of aggregation procedures limits the availability of motions to transfer, but transferring from one court in a state in which the big drug or device manufacturer does not want to be to another court in the same state may not improve the deal much.

The second vehicle is to claim that the forum, typically meaning anywhere in the state where sued, is an inconvenient one for the defendant and the case.  There is some basic appeal for the plaintiff’s response to a forum non conveniens motion lodged by a defendant sued in its own state—how can it be inconvenient for you to be sued in your own state?  Because many drug and device manufacturers are based in, or have subsidiaries that are based in, New Jersey, and because one of the mass tort judges in New Jersey was generally thought to be somewhat inclined to one side of the v., Atlantic County, New Jersey, became a favorite destination for litigation tourists.Continue Reading Inconvenient (Forum) Shopping in New Jersey

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Okay, so you’d really like to remove that case that the other side filed in one of the notorious litigation tourist traps, but. . . .  The insignificant in-state – that is to say, nondiverse – defendant was held not to be fraudulently joined, so your case was remanded to state court.  What next?

Defense lawyers shouldn’t give up.  We’ve written before about Bauman and the new personal jurisdiction arguments it may provide.

But other, less novel approaches also exist.  How about forum non conveniens?

That’s the lesson of the recent California trial court decision in In re Accutane Drug Cases, 2014 WL 3579826, slip op. (Cal. Super. L.A. Co. July 21, 2014), obtained courtesy of Brian Ziska at Shook Hardy.

The defendant in Accutane was the same boat as a lot of defendants in California litigation.  Plaintiffs from all over the country, literally from New York to Washington state, joined a factually insignificant  in-state drug distributor (McKesson Corp.) for the purpose of defeating diversity jurisdiction, and for that reason alone.  We’ve blogged about this fact pattern before, and it’s undoubtedly duplicated in dozens of fraudulent joinder/remand cases from California.Continue Reading The Next Best Thing to Removal

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As one of our other bloggers have recently revealed, Bexis recently went on vacation for two weeks.  He was diligent, however, and pre-wrote two posts (not time sensitive) that appeared in his absence.  As for the co-blogger’s quip about Bexis’ “active, muscular vacations” well, in this instance that’s probably right.  For most of Bexis’ two-week absence, he was rafting through the Grand Canyon.

With Bexis otherwise occupied, the blog’s other denizens did an admirable job of keeping up with current developments in case law, but nonetheless items piled up in Bexis’ inbox awaiting his return.  Most of them weren’t even judicial opinions.  It’s time to empty that inbox.

Perhaps the most important development was the approval, on May 29, by the full Federal Judicial Conference’s Standing Committee on Rules of Practice and Procedure, of the discovery-related rules changes that we’ve been covering on the blog.  Bexis has been heavily involved in this effort through the Lawyers for Civil Justice (“LCJ”), and LCJ sent him notice of the approval. We’d pass it along, except it includes internal LCJ business as well.  So we’ll just hit the highlights.

First, there were no changes to the language of the proposed amendments themselves, which we have previously discussed.  The only changes from the version published in the subcommittee’s agenda book were:  (1) a new sentence in Note for Rule 26(b)(1) encouraging computer search technology (that is to say, predictive coding), and (2) modifying the Note for Rule 37(e) concerning the role of prejudice in subsection (e)(2).  Thus, the main benefits of the amendments from our perspective remain:

  • enshrinement of proportionality in Rule 26(b)(1);
  • curtailment of the capacious “reasonably calculated” standard for the scope of discovery in the same subsection;
  • Explicit rejection of the negligence-based standard for ediscovery sanctions in Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), and thus by necessary implication of other precedent in that circuit following that standard (this means you, Zubulake); and
  • Requiring a finding of specific “intent to deprive another party of the information’s use in the litigation,” under Rule 37(e)(2) before any federal jury can be instructed on evidentiary presumptions from loss of electronic information.

Continue Reading Bexis’ Inbox 2014

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Guest Post – Tale of Two Districts: How Does Fennell Apply to Illinois Resident Plaintiffs?

Here’s another guest post about recent forum non conveniens developments in Illinois by Brendan Kenny of Blackwell Burke.  This is important because forum non constrains the appetite of the black hole counties of that state.  As always our guest posters get all the credit and take all the blame.

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In Fennell, the Illinois Supreme Court made clear that Illinois trial courts must grant a defendant’s forum non conveniens motion if the plaintiff has no significant connection to the forum. Readers will recall that Fennell was one of the thousands of out-of-state residents who have filed cases in Illinois plaintiff-friendly forums. So much for foreign plaintiffs—but what about Illinois residents who file in Cook, Saint Clair, or Madison County instead of the county where they live? Does Fennell prevent Illinoisans from forum-shopping within their state’s borders? Two recent appellate court decisions suggest that it does.Continue Reading Forum non Conveniens

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We’ve been on the verge of triskaidekaphobia.  So far 2013 hasn’t been a very good year for us, with Weeks, Stengel, Arters, and Wells.  At this rate, we could fill up our Worst Decisions of 2013 by mid-March.  And yes, we’re not Dr. Pangloss here on DDLaw – we do cover our side’s losses, if rather grudgingly.

But finally this week turned out better, judging by the cases we’ve learned about so far.  First and foremost is a case we on the Reed Smith side just can’t talk about very much, since it’s our case.  That’s Caplinger v. Medtronic, Inc., No. CIV-12-630-M, slip op. (W.D. Okla. Feb. 6, 2013).  All we can say is that it involves PMA device preemption (Riegel), and off-label use issues, and it’s favorable.  We’re hoping that our Dechert contingent can give readers an update on just how it’s favorable.  Until then, we’ve given you a link – and put it on the medical device preemption scorecard.

We also learned about a good class action decision, In re Celexa & Lexapro Marketing & Sales Practices Litigation, MDL No. 09-02067-NMG, slip op. (D. Mass. Feb. 5, 2013).  As readers can tell from our federal and state class action cheat sheets, successful class actions in drug/device product liability litigation don’t happen much anymore, if at all.  Indeed, we’ve been following this topic more generally, and we believe that, since the groundbreaking Supreme Court decisions of the late-1990s (Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)), not a single contested personal injury merits class action (as opposed to settlement, where the fix is in) has survived appeal in the federal court system – that’s not just drug/device but any form of personal injury.

Is it any wonder that the purveyors of class actions have turned away from personal injury to economic loss?  We don’t think so.  But as our cheat sheets indicate, they haven’t done very well there either, at least where drugs/medical devices are concerned.  We’re pleased to report that Celexa/Lexapro
continues that trend – even though the forum-shopping plaintiffs ensconced themselves in a relatively defense-unfriendly forum (District of Massachusetts)
and eventually retreated to invoking extremely defense-unfriendly law (the infamous California UCL, and the less infamous, but we’d say now about equally bad, Missouri consumer fraud statute).Continue Reading Finally, A Decent Week

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Earlier this month we featured a guest post on a potentially game-changing forum non conviens decision by the Illinois Supreme Court, Fennell v. Illinois Central Railroad, ___ N.E.2d ___, 2012 WL 6725822 (Ill. Dec. 28, 2012).  While Fennell was an asbestos case, our reading of the case suggested that it would be equally applicable…

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Good news/Bad news jokes are a staple of the Great American
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news for you. The good news is that these test results say you have 24 hours to
live. The bad news ….
Patient:

…

Drug & Device Resources

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FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
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