A case we reviewed a few months in the past got here to thoughts lately, not solely due to its end result, but in addition as a result of how lengthy it has been kicking round in our federal courtroom system, trapped in an MDL. What refreshed our recollection? As common weblog shoppers have learn this week, the annual ACI Drug and Medical Gadget Litigation convention was final week in New York, the place we heard from an impressive panel of attorneys on the Rule 16.1, the brand new Federal Rule that addresses multidistrict litigation. We lately introduced a CLE on that matter too, together with our colleague Christina Olivos. Considered one of our main beefs with MDLs is the great overuse (abuse?) of MDLs by plaintiffs with out tenable claims, generally by the 1000’s. The result’s clogged dockets, inattention to precise deserves, inevitable delay, and unfair stress to enter into mass settlements. The brand new Rule 16.1 may assist with this case, however then once more, it won’t.
This isn’t solely a protection situation, as plaintiffs and their legal professionals likewise discover themselves caught in MDLs with little management over their particular person instances and even much less consideration. The district courtroom’s order in Mercier v. DePuy Orthopaedics, Inc., No. CV 23-0040, 2024 U.S. Dist. LEXIS 194642 (C.D. Cal. Oct. 25, 2024), illustrates the purpose. In Mercier, the plaintiff’s decedent had hip substitute surgical procedure, though we aren’t instructed when. Regardless, he sued the hip implant’s producer in 2015 alleging issues, and he filed immediately into the Pinnacle Hip MDL within the Northern District of Texas.
Then he waited. After which he waited extra. After which some extra. As is frequent in multidistrict litigation, this affected person’s case languished within the MDL for seven years, till being transferred to the Central District of California for pretrial and trial proceedings. Throughout that point, life and demise intervened. The affected person moved from California to Nevada, and he sadly handed away in 2024 as the results of an opioid overdose.
The administrator of the affected person’s property filed an amended criticism alleging survival claims, but in addition including claims for wrongful demise—claiming that the affected person’s alleged hip-related accidents precipitated his demise, too. The difficulty was whether or not California regulation or Nevada regulation utilized, since these states deal with wrongful demise and survival claims in a different way. California’s wrongful demise declare requires the joinder of all indispensable events, and on the time the motion was filed, California adopted the rule {that a} plaintiff’s ache and struggling damages dies with him. (California has since altered that rule.)
The district courtroom dominated that California regulation ruled. First, the courtroom utilized California’s choice-of-law guidelines, stating that choice-of-law guidelines “are substantive points for Erie functions, that means federal courts in California will apply California selection of regulation guidelines.” Id. at *6. That’s wonderful, besides that this case was filed in Texas, and we had been taught again within the day that when a case is transferred, the substantive regulation transfers with it, together with choice-of-law guidelines. We might have utilized Texas’ selection of regulation, however we digress.
Second, the district courtroom decided that California’s curiosity can be extra impaired if its regulation weren’t utilized to the case. The courtroom famous that California’s choice-of-law instances “proceed to acknowledge {that a} jurisdiction ordinarily has the predominant curiosity in regulating conduct that happens inside its borders” Id. at *14. Right here, the affected person’s hip substitute surgical procedure was in California at a time when he resided in California, and the gadget was allegedly manufactured and bought in California. Furthermore, as a result of the plaintiff might treatment any deficiency within the criticism with an modification, making use of California regulation wouldn’t impair Nevada regulation within the least. One wonders why the plaintiff didn’t amend the criticism to start with, as an alternative of participating on this movement apply, however once more, we digress.
So California regulation applies, and the plaintiff needed to file an amended criticism becoming a member of all indispensable events. However that’s not the story. As an alternative we ask, What took so lengthy? This affected person filed his criticism 9 years in the past, and the distinctive passage of time since then noticed him transfer from one state to a different and finally cross away. Think about his frustration and that of the defendants, who’ve confronted this declare for occurring a decade and now face a wrongful demise declare allegedly stemming from a surgical procedure that occurred at the very least ten years in the past, and possibly longer. Perhaps a rule like Rule 16.1 would have assist transfer issues alongside, and possibly not.