Appealability issues in multi-district litigation can  present knotty problems.  While we (that is, Bexis) came up with the preemption argument that killed off fraud on the FDA claims, the realities of MDL practice meant that, even after winning, there was no appeal.  Only when a peripheral defendant – an FDA consultant facing no other claims – filed a “me too” motion was an appealable order created. The consultant’s name was Buckman.

Thus we read with interest the resolution of the MDL appealability issue in Gelboim v. Bank of America Corp., 135 S. Ct. 897 (2015).  Gelboim has nothing to do with drugs and devices; it was an anti-trust case.  The substantive issue was “anti-trust injury,” which doesn’t matter here except to the extent that the district court held that the plaintiffs didn’t have any cognizable injury.  Since the plaintiffs in question didn’t have any other claims, that meant their action was kaput.  Time to appeal, right?  The district court thought so.  135 S. Ct. at 903-04 (discussing procedural history).  In addition, the MDL court issued an order under Fed. R. Civ. P. 54(b), allowing certain other plaintiffs to appeal, even though they had other claims remaining.  (A use of Rule 54(b) also produced the Buckman appeal.)

Not so fast!  The court of appeals said no. Based on a “strong presumption” that appeals in “consolidated cases” were not final, the Second Circuit (the appeal was from the S.D.N.Y.) dismissed the appeal.


Continue Reading Supreme Court Clarifies MDL Appealability Issues

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

The Eleventh Circuit’s recent decision in In re Engle Cases, ___ F.3d ___, 2014 WL 4435893 (11th Cir. Sept 10, 2014), although involving cigarettes rather than prescription medical products, rips the scab off shoddy practices that plague many mass torts and are inherent in the other side’s solicitation-based approach to such litigation.  Basically, the

In our post on the worst decisions of 2013, we highlighted two trilogies of dreck, the First Circuit’s Neurontin decisions and the Pennsylvania Superior Court’s Reglan decisions.  Today, we discuss a rare pentalogy of drecky decisions from the same court in the same litigation issued over nine days.  See In re Actos (Pioglitazone) Prods. Liab. Litig., MDL No. 6:11-md-2299, 2014 U.S. Dist. LEXIS 4808 (W.D. La. Jan. 10, 2014); In re Actos (Pioglitazone) Prods. Liab. Litig., MDL No. 6:11-md-2299, 2014 U.S. Dist. LEXIS 5289 (W.D. La. Jan. 14, 2014); and three slip ops. concerning experts Panigrahy, Southgate and Grossman.

Like the Lance decision in yesterday’s post, the five Actos MDL Daubert decisions make a strong early case to be included with the worst of whatever else comes down the pike in 2014.  Last week, we posted on the same court’s overly narrow construction of conflict preemption.  Before that, we noted some better—from our perspective—decisions from the same court involving  smacking around a plaintiff lawyer for discovery nonsense, referring a state law question to the Arkansas Supreme Court, and even knocking out speculative medical monitoring opinions under Daubert.  We infer from this progression, and from the repeated and vehement chastising of the Defendants in the five Daubert decisions, that there has been shift in how the court views the parties that is coming through in its decisions.  We have been known to do some chastising of our own, but we never claimed to be neutral.  We also have not seen so many “cautions” to parties—there is but one to plaintiff’s counsel (about framing questions at trial) amid dozen or more to Defendants—or so many characterizations that arguments in motions were false, disingenuous, anemic, borderline specious, or hyperbolic.  You really have to read these decisions to get the full flavor, but it is hard to separate the substance from the delivery.  It is also hard to discern a single explanation for all the strange rulings in the five decisions on five experts in different areas.

We start with the disclaimer that we did not read the briefs of the respective parties or review the studies and liability evidence.  Like many with televisions or at least passing interest in the regulation of drugs, we have some understanding about how the evidence on the association of Actos and bladder cancer and the warnings about that issue have changed over time.  We would not begin to say whether the Court’s characterizations of the evidence and argument from the Daubert briefs are correct, any more than we would say whether an opinion that Actos causes bladder cancer or that the drug’s sponsor should have taken some additional action is correct.  As the Actos court and others before it got wrong, the admissibility of expert opinion testimony under Rule 702 and Daubert is a matter of procedure.  Daubert is applied in all federal court cases, because it is about procedure, not substance.  (Some requirements for expert testimony really are substantive state law, but that is a different issue.)  Without knowing the substance of the litigation, let alone whether a particular proffered expert opinion is correct, we can tell that the decisions misapply the proper standards, including the ones they correctly outline in the matching “Applicable Law” section of each decision.


Continue Reading At First Face, the Actos Rule 702 Decisions Make No Sense

Not to over-generalize, but older people have been known to break their hips.  Based on anecdotal evidence, broken hips hurt more than stepping on a broken bottle or a sea urchin during a tropical vacation.  Based on more than anecdotal evidence, product liability plaintiff lawyers prefer state courts over federal courts.  This is because of various factors that, they think, make the state courts more likely to impose pain, and impose a lot of pain, on the defendants.  We have posted on many cases discussing the strategies used by product liability plaintiffs to stay out of federal court.   These cases often come up in the posture of a motion to remand by the plaintiff after the defendant has removed under 28 U.S.C. § 1446.  If the case can be transferred to an MDL court—potentially well-versed in the anti-removal strategies—before a ruling on the motion to remand, then the chance of the case staying put tends to go up.

In Millman v. Biomet Ortho., Inc., No. 3:13-CV-77 RLM-CAN (N.D. Ind. Dec. 10, 2013), and Akin v. Stryker Corp., Civ. No. 13-1811 (DWF/FLN) (D. Minn. Dec. 12, 2013), we have decisions on motions to remand from two different MDL courts on two different cases involving two different hip replacement implantable medical devices.  We also have two different results, although both are good.


Continue Reading It’s Getting Icy Out, So Don’t Fall and Hurt Your (Non-Diverse Defendant in a) Hip (Replacement MDL)

Today we discuss the second summary judgment decision entered in the pelvic mesh MDL bellwether cases.  Stay tuned for a Daubert decision coming soon.  And again, these posts come solely from the Dechert side of the blog.

This summary judgment ruling can be found at In re: Bard, Inc. Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2187, 2:11-cv-01224, 2013 U.S. Dist. LEXIS 78052 (S.D.W.V. June 4, 2013).  Not surprisingly, since we are talking about the same MDL and same bellwether pool, today’s case and yesterday’s case bear some striking similarities.  To begin with, we are dealing with the same product — Avaulta Plus Biosynthetic Support System – and essentially the same challenges to plaintiff’s claims and to defendant’s affirmative defenses.

And, many of the rulings were the same.  Summary judgment granted on plaintiff’s manufacturing defect claims (no evidence of deviation from a standard or specification), Id. at *8-14, warranty claims (no privity), id. at *24-25, and negligent inspection, marketing, packaging and selling claim (no opposition).  Id. at *25.  The court’s rulings on plaintiff’s motion for summary judgment as to defendant’s affirmative defenses were nearly identical as well.  Id. at *25-35.

There are, however, two aspects of today’s case that we thought merited separate treatment. The first is an interesting choice of law twist and the second is a different result on failure to warn.

Today’s case involves plaintiff Rizzo who filed her lawsuit in the Northern District of Georgia.  It was then, of course, transferred to the MDL pending in the Southern District of West Virginia.  And, as the court points out, when deciding questions of state law, and MDL judge “must apply the state law that would have applied to the individual case[] had [it] not been transferred for consolidation.”  Id. at *5.  And choice of law is a question of state law.  So, the court had to look at Georgia’s choice of law rules.


Continue Reading Pelvic Mesh Bellwethers Continued

Several of us (the Reed Smith side, obviously) recently attended the firm partners’ retreat. All our brainstorming about how to improve client service started us thinking about the blog.  In some ways, legal blogging’s not that much different than other legal services – we just don’t get paid for it, at least not directly.  Our intended readership follows us, to the extent they do, with the expectation (realistic, we hope) of learning things that they can use to help defeat drug/device product liability litigation.  That brings value to the industry (and indirectly to various clients), since a win anywhere helps defendants everywhere.

So where can we bring, or at least preserve, value to the industry/our clients through the blog? We thought about MDLs.  Defendants spend a great deal of money slogging their way through MDLs, and where possible we’d like to preserve whatever good we get out of them.  Depending on judicial predilection (Judge Bechtle didn’t; Judge Weinstein does), MDLs often include summary judgment and (less frequently) other dispositive motions concerning individuals or groups of plaintiffs.  Some of the motions are based on Daubert, but if not, they’re usually based on state law – learned intermediary, statute of limitations, other issues.

So what?

Here’s what. State-law-based rulings in MDLs involve judges in one jurisdiction, like Judge Weinstein in New York in Zyprexa, deciding issues presented by other states’ laws – say whether a failure to warn was causal under Louisiana law.  That’s fine for the MDL, but what about the rest of us?  Also, what about anybody after an MDL is (at long last) concluded?  What legal researcher would think to look in New York for a case possibly presenting a relevant fact pattern for a Louisiana motion?

Not too many.

We speak from experience.  When we’re putting together a summary judgment motion in some other case, whether one-off or a different MDL, where do we look for supportive precedent?  Why we look in the logical place, of course – the decisions of that particular state’s courts and federal decisions in the district and appellate courts responsible for that state.  That’s where we get the most bang for our research bucks. That’s doing our clients’ work in the most efficient manner.

So we don’t look in Florida, or New York, or Pennsylvania if we’re working on a case under Texas law.  It’s simply not cost effective, given the number of other jurisdictions and the relatively low likelihood of success.  Sometimes we run across something significant through checking lists of citations (colloquially known as “Shepardizing”) to relevant cases, but we’re not systematic.

But just because it’s not worthwhile in a given case to conduct such broader searches doesn’t mean that what’s out there isn’t worth knowing about.  In Zyprexa alone, Judge Weinstein granted dozens of summary judgments applying the law of at least half the states of the union. Those cases are useful precedent – if defense counsel can locate them in a way that doesn’t waste the client’s money.

That’s where we come in.  We’re bloggers.  We’re not getting paid for this.  We don’t have to be cost effective in the narrow sense that lawyers working for client X or client Y have to be.  We just have to do the research – and we have.

What follows will be incredibly boring to many of you, but we hope equally useful.  We’ve collected individual summary judgment decisions (unless we specify a different procedural posture) in various MDLs – no matter what jurisdiction they were in.  We’ve organized them by state, omitting decisions made by MDL courts applying their own forum’s law, since those cases would be found by searching “the usual suspects.” That means, if you’re researching Mississippi law, just look under “Mississippi law cases” in the list below, and there are the cases, no matter what MDL court decided them.

Caveat #1: As we’ve said many times, we don’t do the other side’s research for them.  These lists include only cases where the defendant won everything (or almost everything) under a particular state’s law.  As far as adverse MDL precedent is concerned, we make no representations whatsoever.  Yeah, we saw some bad cases while doing this research.  We’ve intentionally omitted them.

Caveat #2. We expect this list is under-inclusive. Why? To keep the searches manageable, we reviewed only cases where “product liability” appeared in the name of the case (the usual way that MDLs are named), and “[insert state name] law” appeared somewhere in the body of the opinion.  That means we searched “Alabama law,” not just “Alabama.”  Otherwise, we’d have gotten hits for every MDL case where one of the (often scores) of attorneys was from Alabama.  Still, we think our results are a lot better than nothing. We’re not aware of this kind of list having been compiled anywhere – at least anywhere that’s public.

Caveat #3. We’ve only included issues that we could see possibly arising in drug and device product liability litigation. If an MDL decision was favorable to the defendant only on, say, asbestos exposure product identification (the most common example by far), we have not included it.

Caveat #4. We have not included decisions that were driven by federal issues, such as Daubert or preemption.  Federal issues involve different research considerations, so that decisions from MDLs in different circuits are less useful.

So here goes. For the first time anywhere, pro-defense product liability MDL decisions organized by the jurisdiction of the law being applied.


Continue Reading MDL Precedent Rescue – Big List

All multi-district litigation (“MDL”) practitioners are aware of (and many rue) the Supreme Court’s decision in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).  That’s the decision interpreting the MDL statute, and which held that MDL judges lack jurisdiction to try themselves (through so-called “self-transfer”) cases that were transferred to them for pre-trial proceedings from other federal district courts.  “Pre-trial” and “trial” meant just what the statute said, spoke the Court in Lexecon, and trials must occur after MDL cases are remanded to their original transferor districts.

Not that MDL courts haven’t tried to get around Lexecon.  One way was through “Lexecon waivers,” by which the parties acquiesced in the MDL judge trying their cases, regardless of what the Supreme Court held that the statute required.  We reviewed the pros and cons of that option here and here.  The chief inherent drawback of a Lexecon waiver, as we saw it, was whether Lexecon involved a matter of jurisdiction, in which case the inability of the MDL court to try the action could not be waived.  That would, of course, render the purported “waiver” useless – since whichever side lost the trial could then nullify that result essentially at will by asserting a subject matter jurisdictional defect.  What little precedent exists on the point (we haven’t researched this thoroughly) suggests that waiver is possible, but that parties must proceed quite warily.  See Armstrong v. LaSalle Bank National Ass’n, 552 F.3d 613, 619 (7th Cir. 2009) (Lexecon waiver possible but ineffective); In re Carbon Dioxide Industry Antitrust Litigation, 229 F.3d 1321, 1326-27 (11th Cir. 2000) (Lexecon waiver held valid); Solis v. Lincoln Electric Co., 2006 WL 266530,  at *3–4 (N.D. Ohio Feb. 1, 2006) (finding Lexecon waivable).

Another possibility was suggested in our first Lexecon waiver post back in 2007:

Third, the Chief Justice [sic] could invoke 28 U.S.C. Section 292(d) to designate the MDL transferee judge as a judge of the home court. The MDL transferee judge could then preside over a trial in the home court.


Continue Reading Lexecon Dodge Gets The Kozinski Kibosh

Not to complain or anything, but these are rough days. We were stunned by the last episode of Downton Abbey. [SPOILER ALERT for you pathetic Nigel-Come-Latelies to Downton Abbey.  Skip to the third paragraph if you are still catching up via your Betamax machine.  By the way, you might also want to try listening to a hot new musical group called The Beatles.  Also, check out vanilla ice cream.  It’s an acquired taste, but pretty darn good.]  When has a series killed off two main characters (and, arguably, the most important character, in terms of setting action in motion and being transformative) in the same season? The show is well written and splendidly acted, but it is, at bottom, cruel. The resumption of Breaking Bad will actually come as a relief; sure, there’s lots of drug dealing and murder in it, but it does not toy with our emotions nearly so much as those arch Brits. (For an interesting mash-up, see the “Breaking Abbey” skit here.)  From what we hear, the latest Downton death came about because the actor wanted to abandon the show for other acting opportunities. Mr. Stevens, we mutter a few curse words in your direction: “Daniel J. Travanti” and “David Caruso.” Good day, sir!

The expiration of a charming fictional lawyer followed by only a few days the death of a real life, regal legal eminence, Ronald Dworkin. In our first year of law school the great Edward Levi taught a class called “Elements of the Law,” which addressed the Big Questions – certainly bigger than the Rule in Shelley’s Case or the distinction between larceny by trick and obtaining property by false pretenses. In “Elements” we read from the likes of Bentham, Rawls, and Dworkin. We struggled mightily to follow Dworkin’s intricate analyses. How can a book with such a straightforward title, Taking Rights Seriously, be encumbered with such impenetrable prose? And yet Dworkin’s insistence on law’s moral dimension was undeniably refreshing. Dworkin was the second most cited legal scholar of the 20th Century, exceeded only by our favorite Seventh Circuit Judge, the one who launched our occasional postings on why “There’ll Always be Posner.” Dworkin ennobled our profession, even as he often puzzled it.

Meanwhile, the same issue of the Wall Street Journal with Dworkin’s obituary also informed us that fish exposed to certain anti-anxiety drugs (via industrial run-off or sewage) become less social but braver. Granted, we are not sure how to define ichthyo-courage, but the story had us hooked. It also made us feel somewhat anxious. As is all too often the case, we find ourselves wondering how bits of news and popular culture would affect judges and jurors. It might well be that a timid perch could benefit from a random dose of an antianxiety medication. The fish’s consumption of the Mickey Fin might have been off-label, but we do not think an over-enthusiastic sales rep played any role in luring in that particular customer.  Still, we couldn’t help but think that some readers would take this fish-story (the one that did not get away) as further evidence of corporate perfidy and bad drug side effects. We are swimming through the waters of a double standard. The scales are weighted against corporations, which are held to a higher standard and suspected of the worst means and motives.


Continue Reading Accutane MDL Court Dismisses 40 Cases for Plaintiffs’ Failure to Meet Expert Designation Deadline

            Whether you call it a mulligan, a do-over, or a gimme — the result is the same.  You get a second chance at something that didn’t go so well the first time.  For instance, we think it is likely that Sony would like a do-over on the Betamax as much as we’d like a pass