MDL

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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)

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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

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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

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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

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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

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            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

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Photo of Stephen McConnell
We all know how easy it is to complain about bad decisions. Right now, sports pundits and fans are holding a gripeathon about the National Football League ‘s replacement referees. There has been more talk about the officiating mistakes than about the athletic performances. A sense of perspective is in order.　 The comparison baseline is

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Photo of Michelle Yeary

For some reason, when we identify three things in a group, in our heads we hear them to the beat of “lions and tigers and bears, oh my!” from the Wizard of Oz.  It works with lots of things – apples, bananas and pears, oh my; iphones, droids and blackberries, oh my; vanilla, chocolate and strawberry, oh my!  And then that got us thinking about other things that come in threes.  Three strikes and you’re out and three goals in a hat trick.  There were Three Stooges (OK, technically there have been more Stooges, but we won’t go there) and Three Musketeers (again, you can argue with us about  D’Artagnan).    There are three Jonas Brothers and there were three Bee Gees.  Now, we feel like we are on an episode of the $10,000 Pyramid:  Blind mice, men in a tub, sheets to the wind – “things that come in threes.”
All that to segue into today’s case which touches on three of our favorite topics – fraudulent joinder, TwIqbal, and MDLs.  The case – Johnson v. DePuy Orthopaedics, Inc., 2012 U.S. Dist. LEXIS 74450 (N.D. Ohio May 30, 2012) is one of eleven essentially identical cases to be decided in the ASR Hip Implant MDL.  And, we are happy to report that the court decided that a claim brought against a local distributor constituted fraudulent joinder.  And, we are even happier to report that in reaching that conclusion, the court applied TwIqbal pleading standards to the motion to remand.
The context is quite familiar in our line of work.  Plaintiff sues diverse manufacturer and non-diverse distributor in state court; manufacturer removes to federal court on grounds of fraudulent joinder; plaintiff moves to remand; case gets transferred to MDL.Continue Reading Fraudulent Joinder, TwIqbal & MDLs, Oh My!

Drug & Device Resources

Bexis’ Book

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.
Learn more about this book