Famous (and infamous) Illinois trial lawyer Clarence Darrow once said that he never wished a man dead, but had occasionally read some obituaries with great satisfaction.  (That same quote is sometimes incorrectly attributed to Mark Twain.) 


We’re no Darrow. We’ve never saved a client from capital punishment, or discredited a former presidential candidate in a

The hip implant litigation, Rouviere v. DePuy, has already given us one of the classic opinions on the COVID-19 “new normal” in litigation practices.  See Rouviere v. DePuy Orthopaedics, Inc., ___ F. Supp.3d ___, 2020 WL 3967665 (S.D.N.Y. July 11, 2020) (blogged about here).  That decision was prompted largely by the plaintiff’s

On many occasions, we’ve remarked that in modern prescription medical product liability litigation MDLs, the main objective of both plaintiffs and their counsel is to file as many lawsuits as possible, and then to do the bare minimum possible to avoid dismissal.  The idea is to run up the numbers, make the defendants spend huge

Any defendant that has litigated – and lost − remand motions has encountered plaintiffs with very flexible facts, particular in opposition to fraudulent joinder arguments.  By that we mean:  dates that change after remand, non-diverse defendants that suddenly had nothing to do with anything, damages shrinking below the jurisdictional minimum, product exposures that disappear, “yes” that becomes “no” (and vice versa) in plaintiff testimony.  That kind of thing.

But there’s nothing anybody can do about it, right?  After all, a federal statute, 28 U.S.C. §1447(d), bars federal review of remand orders, so no matter how outrageous a plaintiff’s fraud on the court during the remand process is, they skate, and the defendants are stuck in state court, right?

Wrong.  At least not now.  At least in the Fourth Circuit.  See Barlow v. Colgate Palmolive Co., ___ F.3d ___, 2014 WL 6661086 (4th Cir. Nov. 25, 2014).

In the first precedential decision to address this issue, last week the en banc Fourth Circuit held in Barlow that, when a plaintiff’s remand-related misrepresentations are bad enough, a remand order can be vacated under Fed. R. Civ. P. 60(b)(3), with the result being that the case retroactively returns to federal court.  It’s a matter of first impression (prior adverse appellate decisions were all non-precedential), so all defendants should study Barlow closely.

Continue Reading Fraud on a Federal Court Allows Vacation of Remand Orders

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

This post is from the non-Reed Smith side of the blog.

Plaintiffs seeking sanctions in the Actos litigation is nothing new.  We’ve covered the absurd federal MDL spoliation ruling here and the saner result from the Illinois state court proceeding here.   Apparently, the MDL plaintiffs weren’t satisfied with their win on spoliation or with their equally ridiculous trial verdict, so this time they went after Eli Lilly asking the court to use its inherent power to strike Lilly’s answer to the complaint and to enter default judgment in favor of plaintiffs.  In re Actos Prods. Liab. Litig., 2014 U.S. Dist. LEXIS 81305 at *19 (W.D. La. Jun. 11, 2014).  Fortunately, the court denied the motion in its entirety – in large part because plaintiff overreached on the sanctions it wanted imposed and under-reached on the legal theories it used to support its arguments.  But, at the core of the motion was something no defendant or defense counsel wants to have to face – allegations of perjury by a former employee.

We don’t know exactly how Lilly found itself in the situation we are about to describe.  But, the words of every trial advocacy professor we’ve ever had sprang immediately to mind:  Don’t lose because you failed to thoroughly prepare your witnesses.  You never want to be surprised at trial by what your witness is going to say.  And while that gets trickier with a former employee, if you are identifying them on your witness list as someone who will testify on your behalf, you better have considered things like:  was the witness prepared by counsel, does the witness make a good appearance, has the witness provided testimony elsewhere that is concerning or problematic.  And, if the reality is that this is “the” witness on a central issue regardless of how some of these questions are answered – then you better prepare, prepare, prepare and prepare again.

Continue Reading Actos — Another Motion for Sanctions

The Actos litigation has a way of being topsy-turvy these days.  We discussed not too long ago the epic ediscovery fail in that litigation, whereby a defendant, because of overbroad litigation holds that it allowed to persist even after the litigation that had generated them had long since disappeared, was held to have spoliated evidence at a time when there was no Actos litigation.  Appallingly, plaintiffs were allowed to “presume” prejudice from the loss of the information – when it’s not at all clear that the missing information wasn’t, in the end, discovered either in other employee files or from third-party discovery.  In re Actos (Pioglitazone) Products Liability Litigation, 2014 WL 355995, at *26-28 (W.D. La. Jan. 30, 2014).  The missing Actos files were destroyed when people left the defendant’s employ, rather than in any extraordinary attempt to sanitize files.  Id. at *26.

The effects of this unusual ruling evidently continued at the first Actos trial.  According to a post last week on the E-Discovery Law Alert  (a blog specializing in ediscovery):

[The judge instructed the jury after closing arguments Monday that they could take [defendant’s] evidence spoliation into account.  Additionally, throughout the trial, the jurors were exposed to voluminous evidence detailing [defendant’s] conduct in destroying the relevant evidence.

As a result we ended up with a $9 billion punitive damages verdict where the plaintiff received all of $1.5 million in compensatory damages.  That’s a ratio of six thousand to one.  The Supreme Court and most state courts consider any ratio above 10:1 presumptively unconstitutional.  A ratio this large, we think, is not only unconstitutional, but is presumptively the product of what lawyers call “passion and prejudice” on the part of the jury.  A verdict based on passion and prejudice is typically thrown out in its entirety.  This one certainly should be.

Continue Reading Actos – Finally Some Sanctions-Related Sanity

The pelvic-mesh plaintiff wrote this in his affidavit:  “I do not know whether mesh was implanted in my body.”  Favor v. W.L. Gore Assocs., 2014 U.S. Dist. LEXIS 17134, *6 (S.D. Oh. Feb. 11, 2014).  We lead with that admission today because we thought it would be a good day to use the old

We haven’t blogged much about the Pradaxa MDL pending in the Southern District of Illinois.  A quick search turned up a post on a case that was remanded because a sales representative was found to be properly joined and a post on a not so great discovery ruling.  But, it’s a relatively young MDL with,

As lawyers who usually represent defendants in serial product liability litigation, we like rules.  We like deadlines.  We like thorough expert discovery.  While we have been known to seek some discovery extensions and have slogged through cases in jurisdictions where expert discovery just means that the parties exchange reports, we tend to think that our plaintiffs prefer no rules and deadlines for experts—or having rules and deadlines that are not enforced.  In serial litigation, where you can see the same expert show up with an “insert plaintiff name here” approach to reports and testimony, there can be a temptation to abbreviate expert discovery.  After all, sometimes clients prefer to save money and lawyers prefer not to waste time.  Grote v. Wright Med. Group, Inc., 12-CV-2002-LRR, 2013 U.S. Dist. LEXIS 124693 (N.D. Iowa Aug. 30, 2013), seems to us like a case where the plaintiff tried to take advantage of these preferences and got called on it, at least somewhat.  It also may be the first time we have read a decision this long—21 of those Lexis * pages—that only cites a single case.  It definitely taught us that a response to a motion is referred to as a “Resistance” in some courts.

In Grote, the plaintiff sued over an allegedly defective hip prosthesis and served apparently typical reports from frequent flyer liability experts.  Because these experts had been deposed before in other cases and the reports did not disclose anything new—aside from mentions of the plaintiff—the parties agreed not to depose the liability experts.  The defendant even informed the court of the agreement in an uncontested motion to extend the discovery and dispositive motions deadlines.  On the last day of discovery, when it was surely apparent that the defendant manufacturer would soon be filing Daubert motions and a motion for summary judgment, the plaintiff served supplemental reports from two of these experts, Fred Hetzel and Mari Truman.

Continue Reading Paying Some Price for Gamesmanship