From the defense perspective, the worst thing about a mass tort is that it is so … massive. The more the merrier? No way. The presence of multiple plaintiffs signals to the jury that something must be wrong with the product. Don’t believe us? We think there is research to support our dislike of consolidation
We have a case going on where the plaintiff wants to preclude the use of a term found in his medical records to describe something that happened to him in the past that is highly relevant to the claims and injuries in the case. Instead of using the actual term, which was also used in
We have always wondered why judges are hesitant to sever the claims of plaintiffs who never should have joined their claims together in the first place. You know what we mean—multiple plaintiffs, sometimes dozens of them, who join their claims together in one complaint based only on the allegation that they used the same or
Risperdal, an antipsychotic drug prescribed to treat serious mental conditions – schizophrenia, manic depression, and autism – allegedly causes some male users to develop abnormal breast tissue growth. Particularly when compared to the consequences of the conditions Risperdal is indicated to treat, that seems like a relatively minor risk. It isn’t fatal. It isn’t a
We sometimes start our posts with disclaimers about how we do not know all the details of a case, perhaps supplemented by a little digging on the internet, or that we are not experts in some substantive area. We start this post with disclaimers that we (and our respective firms) are not involved in the case we are writing about (or the related cases mentioned in it) and we are not specialists in antitrust or patent law (although others at our respective firms are). We do know misjoinder, forum shopping, and judicial smackdowns when we see them, though. We typically encounter misjoinder when a bunch of individual plaintiffs from various places are listed on a single caption because they each are pursuing individual claims over injuries allegedly caused by the same or similar products. As long as at least one plaintiff is from where they have sued and at least one plaintiff is from the defendant’s home state, they all get to stay where their lawyers chose to sue, at least if they get their way. (Set aside CAFA for now.) When confronted with a motion to sever—or another motion that implicates the issue—they argue that joinder is perfectly appropriate because all cases against the manufacturer of product(s) are really about the same set of facts—i.e., the company designed a dangerous product and marketed it without adequate warnings of its risks.
Forum shopping is the other half of litigation tourism, as we often call it—like picking the campground for the family reunion. The lawyer’s reason for picking the court is typically not revealed, just that a plaintiff gets to pick and their choice should be afforded deference. We have yet to see a lawyer say they picked the venue where they felt they had the most influence with the bench and/or juries apt to put extra zeros on the damages in a case against an out-of-state defendant. That the plaintiff lawyers, rightly or wrongly, consider where to file and how to package their clients as part of their desire to maximize the total recovery by verdict or settlement—and their fees—should not be a shock to anyone. But we might suppose that the government lawyers trying to enforce the Federal Trade Commission Act and the Clayton Act might be above such base considerations.
Continue Reading Misjoinder and Forum Shopping by the Government
Twice this month we’ve reported on “the saga of Cymbalta plaintiff lawyers who keep pushing the litigation up a hill in an effort to create a class action, mass action, MDL, or whatever will allow them to park as many meritless cases in one place, only to have that litigation roll back down the hill, resulting in crushed toes, directed verdicts, and jury findings of no liability.” Let’s make it a trifecta. Both with our third post and with three more decisions severing the claims of misjoined plaintiffs who have nothing in common except that they each used Cymbalta and they each allege injury. The cases are Jones v. Eli Lilly, 2015 U.S. Dist. LEXIS 141925 (S.D. Ind. Oct. 19, 2015) (15 plaintiffs from 11 states); DeCrane v. Eli Lilly, 2015 U.S. Dist. LEXIS 141924 (S.D. Ind. Oct. 19, 2015) (2 plaintiffs); Boles v. Eli Lilly, 2015 U.S. Dist. LEXIS 141922 (S.D. Ind. Oct. 19, 2015) (19 plaintiffs from 11 states).
We set out the background of plaintiffs’ counsel’s numerous attempts to create a mass tort in our prior posts here and here. Based on theses earlier decisions, the result in these three cases is really no surprise. But, it does make for more great precedent on misjoinder and severance. So, today we’ll throw you some sound bites. For instance, it is hard to argue claims are properly joined when they are described as:
the claims of fifteen Plaintiffs from eleven different states whose allegations rest on distinct, unrelated factual scenarios: Cymbalta treatment over fifteen different time periods, presumably in eleven different states, for several different conditions….; use of the medicine under the care of multiple healthcare professionals from a range of medical subspecialties, affiliated with different practices and, potentially, varying degrees of exposure to the relevant product labeling; a host of potential co-medications and comorbidities; and, finally, Plaintiffs’ particular discontinuation methods (whether abrupt or tapered over varying lengths of time) which allegedly resulted in a range of symptoms of varying type, severity, and duration.
Jones, 2015 U.S. Dist. LEXIS 141925 at *16-17 (all three decisions are virtually identical, so we cite to Jones throughout).
Continue Reading Another Smack Down for Cymbalta Plaintiffs’ Lawyers
Ninety-nine years ago tomorrow Georgia Tech administered the most lop-sided beat-down in college football history, edging Cumberland University 222-0. (By the way, who was the head coach of Georgia Tech who presided over that delightful display of sportsmanship? Find the answer below.) Today we blog about a legal beat-down, though in this case it is the plaintiff-losers – actually, the plaintiff lawyers – who were the bad sports. The case involves a firm client, though we were not involved. There is still an open issue remaining regarding transfer, so we will do our best to resist spiking the ball. Instead, we will simply gather in the victory formation as we report the court’s holding as if we were writing a box-score, sans razzle and dazzle.
The case is Hill v. Eli Lilly & Co., 2015 U.S. Dist. LEXIS 130934 (S.D. Indiana Sept. 29, 2015), and is another step in the saga of Cymbalta plaintiff lawyers who keep pushing the litigation up a hill in an effort to create a class action, mass action, MDL, or whatever will allow them to park as many meritless cases in one place, only to have that litigation roll back down the hill, resulting in crushed toes, directed verdicts, and jury findings of no liability. The judge in the Hill case saw through the plaintiff shenanigans and granted a motion to sever plaintiffs who had been joined in a transparent and meritless effort to create a mini-MDL.
Before granting the motion to sever, the judge supplied a bit of background, so we will, too. Plaintiffs’ counsel, often the very same lawyers, have been filing Cymbalta cases around the country. There are various claims, but the central allegation is that the warnings regarding withdrawal symptoms were inadequate. Plaintiffs tried to certify a class in C.D. Cal. They failed. Plaintiffs petitioned for creation of a Multi-district Litigation. They failed. Plaintiffs’ counsel then filed six Cymbalta lawsuit in S.D. Indiana, all but one involving multiple plaintiffs from different states. Other plaintiffs’ counsel pursued the same strategy. Some plaintiffs who had filed their cases in other federal districts moved to transfer those cases to S.D. Indiana, mostly, though not always, without success. Then plaintiffs’ counsel showed their hand by again seeking creation of an MDL, this time in S.D. Indiana. If at first you don’t succeed, file, file again.
This post is from the non-RS side of the blog.
Plaintiffs in the Cymbalta litigation tried and failed to create an MDL. They filed cases in California, followed up with more filings in 23 other states around the country, and then asked the Judicial Panel on Multidistrict Litigation to consolidate all of it for them.
A recent pelvic mesh case in the District of Maryland, Sullivan v. Calvert Memorial Hospital, No. PJM 14-118, Memorandum Opinion (D. Md. July 30, 2015), offers an interesting and useful take on federal jurisdiction when plaintiffs name local doctors as co-defendants. You know the drill. In order to manipulate the forum and avoid removal jurisdiction in a case against an out-of-state product manufacturer, plaintiffs will sometimes join a local doctor as a co-defendant. One response could be to remove the case to federal court on the basis that the local doctor was fraudulently joined, a strategy that is legally sound and often successful when dealing with intermediaries in the chain of distribution, such as distributors and pharmacies. Those kinds of defendants do not owe independent duties to plaintiffs and have zero involvement in the design, manufacturing, and labeling of drugs and medical devices (setting aside the potentially vexing issues presented by 3D-printed medical devices, but that is a topic for another day.) Their citizenship therefore should be disregarded.
Fraudulent joinder with doctors is more complicated because doctors obviously do owe duties of care to their patients, so we tend to approach cases involving doctors also from the point of view of fraudulent misjoinder. Under fraudulent misjoinder, the defendant argues that the federal court should disregard the citizenship of the local or non-diverse co-defendant because the claims against that defendant are distinct from the product liability claims against product manufacturer. The case most often cited as the landmark for fraudulent misjoinder is Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996)), and as the argument goes, product liability claims on the one hand are based on facts and law different from medical malpractice claims on the other hand. It is as though two different lawsuits were improperly joined under one caption, which gives the district court discretion to disregard the citizenship of the non-diverse or local doctors and retain federal diversity jurisdiction. (We discussed severance of malpractice claims from product liability claims here, although not in the context of federal jurisdiction.)
Some courts have been slow to adopt fraudulent misjoinder, sometimes citing Tapscott as a minority rule and often ignoring Tapscott altogether. And that is where Sullivan v. Calvert comes in. In Sullivan, the plaintiff’s surgical team allegedly left a piece of a catheter in the plaintiff’s bladder during a procedure to insert a transvaginal sling. Op. at 2. The Maryland plaintiff therefore sued multiple Maryland healthcare providers alleging medical malpractice for leaving the catheter behind, but she also separately pleaded product liability claims against the transvaginal sling manufacturer. Id. at 3.
Continue Reading Using Severance Under Rule 21 To Preserve Removal Jurisdiction
We love our home state of California, but we have long bemoaned the widespread practice of what we call litigation tourism. That is where unrelated plaintiffs, sometimes thousands of them, from all corners of the U.S. join together in mass complaints filed in California state court. For whatever reason, California courts have seemed open to