A great Chicagoan, Ernie Banks, was famous for saying “Let’s play two” – an expression of pure joy about the game of baseball. Another great Chicagoan, Judge Richard Posner, recently came out with a pair of opinions that brought us some joy and reminded us of what good legal reasoning and writing looks like. In
We thank Eamon Joyce at Sidley for alerting us to an interesting forum non conveniens decision out of the Fourth Circuit: Tang v. Syntura International, Inc., No. 10-1487, slip op. (4th Cir. Sept. 6, 2011). We’ve had our own litigation interest in this subject for some time, as Dechert has been involved for more years than some of us care to count in the Blood Products multidistrict litigation (mostly) in Illinois. That’s produced a number of favorable forum non rulings. See Chang v. Baxter Healthcare Corp., 599 F.3d 728 (7th Cir. 2010) (Taiwanese cases sent back to Taiwan); Abad v. Bayer Corp., 563 F.3d 663 (7th Cir. 2009) (Argentinian cases sent back to Argentina); In re Factor VIII or IX Concentrate Blood Products Litigation, 484 F.3d 951 (7th Cir. 2007) (British cases sent back to the UK); In re Factor VIII or IX Concentrate Blood Products Liability Litigation, 2008 WL 4866431 (N.D. Ill. June 4, 2008) (Israeli case sent back to Israel); In re Factor VIII or IX Concentrate Blood Products Liability Litigation, 408 F. Supp.2d 569 (N.D. Ill. 2006) (Italian and German cases sent back to there respective countries), aff’d on somewhat other grounds, 484 F.3d 951 (7th Cir. 2007) (only the Brits appealed); Doe v. Hyland Therapeutics Division, 807 F. Supp. 1117 (S.D.N.Y. 1992) & Dowling v. Hyland Therapeutics Division, 767 F. Supp. 57 (S.D.N.Y. 1991) (both Irish cases sent back to Ireland).
See also Dowling v. Richardson-Merrell, Inc., 727 F.2d 608 (6th Cir. 1984) (DES – back to UK); Lin v. Ortho-McNeil Pharmaceutical, Inc., 2011 WL 3566855 (N.D. Ohio Aug. 12, 2011) (oral contraceptive – back to Taiwan); Lee v. Johnson & Johnson, 2011 WL 3566859 (N.D. Ohio Aug. 12, 2011) (same); In re Fosamax Products Liability Litigation, 2009 WL 3398930 (S.D.N.Y. Oct. 21, 2009) (Fosamax – back to England); Miller v. Boston Scientific Corp., 380 F. Supp.2d 443 (D.N.J. 2005) (stent – back to Israel); Ontario Ministry of Health v. Shiley, Inc., 858 F. Supp. 1426 (C.D. Cal. 1994) (heart valves – back to Canada); Ledingham v. Parke-Davis Division, 628 F. Supp. 1447 (E.D.N.Y. 1986) (dilantin – back to Canada); Stangvik v. Shiley Inc., 819 P.2d 14 (Cal. 1991) (heart valves – back to Scandinavia); In re Vioxx Litigation, 928 A.2d 935 (N.J. Super. App. Div. 2007) (Vioxx – back to the UK).Continue Reading Imported Chinese Litigation Returned To Sender
Blogging has improved our vocabulary. For one thing, we learned what “transubstantivism” was. No, it doesn’t have anything to do with grape juice and wafers. It means that the same rules of civil procedure apply to all civil cases being litigated, regardless of their subject matter.
Thus we complained mightily back in February of 2009
On Friday, Judge Posner issued an interesting opinion in Chang v. Baxter Healthcare Corp., No. 09-2280 (7th Cir. March 26, 2010). The opinion affirms the dismissal on statute of limitations and forum non conveniens grounds of claims brought against U.S. companies by plaintiffs from Taiwan. Along the way, Judge Posner has some interesting things
The authors of this blog live and work in the Philadelphia area. And that suits us right down to the ground. Despite a bad reputation from fans throwing snowballs at Santa (or the Mayor throwing them at the Dallas Cowboys), Philly is a terrific place, with unsurpassed historical (Independence Hall, Betsy Ross House, Valley Forge, Larry Fine) and cultural attractions (the Franklin Institute, Mutter, and Mummer museums – and soon the Barnes (thanks to its Lower Merion neighbors for running it into town).
Philly is an even more terrific place to be a litigator, especially in drug and device law. Look at a map and see how major pharmaceutical companies ring the Delaware Valley and line up from the top of the New Jersey Turnpike down to Wilmington, Delaware. Add to that the presence of extraordinarily aggressive and creative plaintiff lawyers in the City of Brotherly Love, and it’s no surprise that so many of the most prominent drug and device lawsuits end up in our backyard.
Plaintiff lawyers love — absolutely love — to file mass tort lawsuits in the Philadelphia Court of Common Pleas (the good old “CCP”). And we’re not just talking about Philadelphia plaintiff lawyers. There’s no shortage of cowboy boots in City Hall (where CCP is located), because Texas plaintiff lawyers spend almost as much time here as in their home on the range, since the Lone Star state saw fit to pass real-live tort reform. Maybe that’s because Philadelphia has been in and out of ATRA’s “hellhole jurisdiction” list for years- not as bad as some places (most of West Virginia), but a lot worse than others (say, the state of Delaware, or Chester County PA (more on that later)). We have personally been in courtrooms where, in between the rumblings of the subway (rolling loudly directly underneath the building) judges issue rulings that can sometimes charitably be described as peculiar. (In a recent pharma case, the husband of a decedent was claiming loss of consortium. A plaintiff witness sadly described the husband as, in one word, “alone.” The defendant was never permitted to mention that the husband had remarried. Explain that one.)Continue Reading It’s Always Convenient in Philadelphia
Defendants went two for two sending forum-shopping non-resident plaintiffs back where they came from in New York this week. First, the Second Circuit, in a summary order, told bunch of Austrian plaintiffs from a ski train fire to take their lawsuits back across the Atlantic. Ferk v. Omniglow Corp., slip op. (2d Cir. Dec. 21,
Trans-substantivism.
That’s the notion that we should have one set of procedural rules that applies equally to all substantive areas of the law. It’s a cornerstone assumption of modern American procedure. In the federal system, we call our trans-substantive rules — which apply equally to slip-and-falls, massive securities fraud cases, and everything in between —
Herrmann’s a day away from trial and Bexis’ firm represents the defendant, so this post will be very brief. In In re Factor VIII or IX Concentrate Blood Products Litigation, MDL 986 (N.D. Ill. Jan. 17, 2008), the court has just issued an opinion dismissing on forum non conveniens grounds the claims of some