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Four weeks ago, we posted concerning an MDL judge’s decision not to sanction a plaintiff lawyer for false representations concerning diversity jurisdiction.  We disputed that acting in the client’s “best interest” was a good excuse and questioned whether MDL courts cut plaintiff lawyers more slack than they should.  We also had a bit of a

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In prescription medical product liability litigation, both sides invest a lot in their expert witnesses.  In addition to spending time, money, and effort, we work out our legal theories with our experts, and share with them our views of the facts, both good facts and bad facts.  Thus, when the other side inveigles one of ours to switch sides – usually with the promise of a lot more money for a lot more testimony – the result can be a lot of collateral litigation.

We’ve blogged a couple of times before about turncoat experts, so the recent decision in Hawkins v. DePuy Orthopaedics, Inc., 2023 WL 7292164 (D.D.C. Nov. 6, 2023), attracted our interest.  Then we discovered that Hawkins was only the most recent of several decisions barring testimony by the same turncoat expert – one Stephen Li – due to his prior employment with the same defendant concerning product liability litigation involving the same product (and other similar products, as well).  See also King v. DePuy Orthopaedics, Inc., 2023 WL 5624710 (D. Ariz. Aug. 31, 2023); Cannon v. DePuy Orthopaedics, Inc., 2023 WL 7477903 (N.D. Ga. Aug. 16, 2023); McCoy v. DePuy Orthopaedics, Inc., 2023 WL 4551081 (S.D. Cal. July 14, 2023); but see Winkelmeyer v. DePuy Orthopaedics, Inc., 2023 WL 2974480 (W.D. Mo. Apr. 17, 2023).  We note that a couple of other decisions (both precluding Dr. Li from testifying) apparently exist, but because they are either oral or under seal, we have not seen and do not discuss them.  The plaintiffs in those cases were named Sheehy and England.Continue Reading Wrecked on a Li Shore – The Saga of a Turncoat Expert

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We always thought that the decade-old Nargol v. DePuy False Claims Act litigation was a particularly abusive misapplication of the FCA for legal reasons.  As discussed here, the primary allegations asserted the same sort of “fraud on the FDA” claim that, when brought as a common-law tort claim, were held preempted in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001) – that the defendant purportedly misled the FDA to clear a §510(k) medical device, and that, as a result, every use of the device was ipso facto a false claim.  No other causation needed.  As the earlier post discussed, the First Circuit rightly put an end to that attack on FDA authority in United States ex rel. Nargol v. DePuy Orthopaedics, Inc., 865 F.3d 29 (1st Cir. 2017).

Then it turned out that a lot more was wrong with Nargol than just a bogus legal theory.  The relators were p-side “experts,” Antoni Nargol and David Langton, who had access to documents from a couple of MDLs that targeted the defendant’s hip implant products.  Critically:

Protective orders regarding confidential [defendant’s] product design information were issued in both of the multidistrict litigation cases (individually, the “ASR protective order” and the “Pinnacle protective order”; collectively, the “Protective Orders”).

United States ex rel. Nargol v. DePuy Orthopaedics, Inc., ___ F.4th ___, 2023 WL 3746534, at *1 (1st Cir. May 18, 2023).Continue Reading Dismissal of Experts-Turned-Plaintiffs’ FCA Case as Sanction Affirmed

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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

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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

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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

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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

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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