© 2017 The Texas Lawbook.
By Mark Curriden
(Aug. 25) – Appellate law experts widely agree that they can predict how many cases will be decided at the U.S. Court of Appeals for the Fifth Circuit when the panel of three judges are announced.
Several seasoned appellate lawyers say Thursday’s writ of mandamus hearing regarding the hip implant litigation involving Johnson & Johnson’s DePuy Orthopaedics maybe the perfect example.
Plaintiffs’ lawyers battling J&J in a multidistrict litigation received what appeared to be a pair of openly hostile judges who seemed ready to take the extraordinary step of stopping U.S. District Judge Ed Kinkeade of Dallas from moving forward with more bellwether trials, including one trial that is scheduled to start in two weeks.
Corporate lawyers and plaintiffs’ attorneys across the country are monitoring the mandamus proceeding closely.
“This is an important case just because of how big it is,” says David Coale, a partner at Lynn Pinker Cox & Hurst. “There are thousands of plaintiffs and billions of dollars at stake. The future of Johnson & Johnson is at stake.”
The fact that the case involves two conservative icons who openly traded multiple jabs at each other during 30 minutes of oral argument only added to the drama.
Judge Edith Jones said Judge Kinkeade is using a “very odd process” and that his selection of which of the 9,300 individual cases to use in the bellwether trials “comes as a matter of some concern.”
In fact, Judge Jones expressed concern that J&J would have to spend tens-of-millions of dollars in legal fees fighting the jury trials only to have the verdicts reversed a decade from now by the U.S. Supreme Court. She said Judge Kinkeade’s process might allow a “momentum to build” that forces the defendant to settle the cases that may be fatally flawed and eventually reversed.
“They could blow $50 million like that (snapping her fingers) before the Supreme Court grants or denies cert,” Judge Jones stated.
“With all due respect, your honor, that’s not the law of the land,” former U.S. Solicitor Ken Starr, who represents 9,300 plaintiffs, responded.
Starr told Judges Jones, Jerry Smith and Gregg Costa that they could only grant mandamus in extraordinary situations and this is not one of them.
“Even if you think that [Judge Kinkeade] committed error – and we do not – this does not come close to rising to be beyond dispute,” Starr argued.
Starr pointed out that J&J has appealed two bellwether jury verdicts against the company to the Fifth Circuit, and they are pending. He noted that J&J asked the three-judge panel hearing the direct appeal to expedite their handling of the appeal, but that three-judge panel declined.
Judge Jones responded that she didn’t know anything about that other panel or why those judges made their decision.
“Two of the three judges – Jones and Smith – have track records that put them on the side of the court that is more likely to grant mandamus,” says Coale, who is an expert on the Fifth Circuit and author of the popular appellate blog, 600Camp.com. “Judge Smith and Judge Jones seem to have concern that potential error here is magnified and thus justify mandamus review because of the number of cases involved.”
In March 2016, a Dallas federal jury awarded $502 million to five Texans who claimed they suffered serious, chronic and painful medical problems caused by the Pinnacle metal-on-metal hip implants. Judge Kinkeade later reduced the judgment to $113 million, citing damage award caps under Texas law.
In December, a second Dallas jury ordered New Jersey-based J&J to pay another $1 billion to another six individuals – those all from California.
John Beisner, a partner at Skadden, Arps, Slate, Meagher & Flom and representing J&J, said Judge Kinkeade has overstepped his legal authority by conducting additional bellwether trials.
“We are talking about a court trying cases that it has no business trying,” he told the judicial panel.
Beisner argued that Judge Kinkeade believes he “is no longer constrained by the MDL statute or personal jurisdiction principles and can order trials of as many cases as it chooses instead of remanding these cases to courts of proper jurisdiction, as required by the MDL statute and basic jurisdictional principles.”
Starr pushed back that the decision to conduct the MDL in Dallas was pushed by J&J because the company’s lawyers thought Dallas was a more conservative jurisdiction when finding liability and awarding damages. He said J&J essentially waived its rights to conduct the bellwether trials elsewhere.
“This was their choice on forum – it wasn’t ours,” Starr argued. “We, the plaintiffs, are giving up considerable rights to take the cases to Dallas. Our colleagues around the country said, ‘Have you lost your mind?’”
“It doesn’t seem right that they have to be forced into group trials,” Judge Jones shot back. “Why can’t they back out on their waiver?”
“Because a deal is a deal,” Starr responded. “This was the deal. This is the way the MDL practice works around the country.”
Starr said that many of the plaintiffs are from more friendly jurisdictions and would like to try their cases in their hometowns.
Judge Jones responded that those plaintiffs might get to do just that. In a barely audible voice, Starr replies that he thinks the full en banc court would see it differently – a statement only someone of Ken Starr’s prominence could get away with.
Beisner argued that J&J only agreed to bellwether trials involving one plaintiff at a time.
“From the beginning, petitioners’ position has been that true bellwether trials should involve individual plaintiffs, not consolidated trials, to avoid confusing juries and to generate reliable information regarding how juries perceive the strength of various claims and defenses,” Beisner stated in briefs. “When it became clear that the MDL court intended to continue trying consolidated cases, petitioners decided to stop consenting to trials.”
But Starr said the mandamus petition is simply J&J getting desperate.
“Let me be blunt,” Starr argued. “They knew what they were doing. They don’t like losing. Who does? And they will find away [out], including a writ of mandamus.”
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