The U.S. Court of Appeals for the Fifth Circuit has refused to intervene in the massive Johnson & Johnson hip implant multidistrict litigation cases that have been consolidated in federal court in Dallas.
A highly divided three-judge panel late Thursday rejected J&J’s petition for mandamus and refused to stop U.S. District Judge Ed Kinkeade from moving forward with his plans for a Sept. 5 bellwether trial for seven New Yorkers who sued J&J claiming its Pinnacle metal-on-metal hip implant was defective and caused them serious, chronic and painful medical problems.
Two of the Fifth Circuit judges, however, found that Judge Kinkeade committed “serious error” by forcing J&J to stand trial in Dallas against seven plaintiffs from New York.
Lawyers for J&J asked the Fifth Circuit to stop Judge Kinkeade from proceeding with the bellwether trial set to start next week. Three previous trials in Judge Kinkeade’s court have resulted in one verdict for the defendant and two verdicts for the plaintiffs. The jury awarded damages of $502 million and $1 billion in the second and third trials, respectively.
In a 12-page opinion, Judge Jerry Smith – joined by Judge Edith Jones – wrote that Judge Kinkeade “abused his authority” in ruling that J&J had waived its jurisdictional rights when it agreed to the MDL proceedings in Dallas.
But Judge Smith joined with Judge Gregg Costa is ruling that mandamus was denied because J&J could get the relief they wanted by going through the routine appellate process.
“A majority concludes that the petitioners have not shown that they have no other adequate means to attain the relief they seek,” Judge Smith wrote.
Judge Smith stated that he and Judge Jones jointly “requests the district court to vacate its ruling on waiver and to withdraw its order for a trial beginning September 5.”
“An MDL court can conduct pretrial proceedings but cannot try a case that it would not be able to try without its MDL status,” Judge Smith wrote. “Federal law limits an MDL court’s jurisdiction over a transferred case to pretrial proceedings.”
But Judge Kinkeade ruled that J&J lawyers “clearly and unequivocally” on “multiple occasions … waived any objections based on venue to trying any of the cases in the MDL in the Northern District of Texas.”
But J&J lawyers argued to the Fifth Circuit that they had only waived jurisdiction to the first two bellwether trials.
The three-judge panel agreed, stating that Judge Kinkeade committed a “grave error” by ruling that J&J’s waiver was global and permanent.
Mark Lanier, a lawyer representing the plaintiffs in the litigation against J&J, said in an exclusive interview with The Texas Lawbook late Thursday that he plans to ask the full Fifth Circuit to reject the criticisms by Judge Smith and Judge Jones of the trial court.
Judge Smith – joined by Judge Costa – said J&J “would not face irreversible, non-monetary harm” if the fourth bellwether case went to trial.
“We hold that petitioners have the usual and adequate remedy of ordinary appeal,” the court stated.
David Coale, an appellate expert who has followed the J&J case, said it was clear from oral argument last week that Judge Smith could be the “swing” vote.
“[Judge Smith] reasoned that even though the record showed clear error in this one case, it was more important to deny the writ to maintain an important rule of procedure across all cases,” Coale said. “As Spock said in Wrath of Khan, ‘the needs of the many outweigh the needs of the few.’
“Judge Costa, as you would tend to expect for a former district judge, shows that he will be on the anti-mandamus wing of the court,” he said.
In a semi-concurring, semi-dissenting opinion, Judge Costa wrote that there was no need for the panel to even debate the waiver issue. But he said he is troubled by the entire process.
“I have concerns that an MDL process that takes trials away from local judges and juries adds to the centralizing trend that is so prevalent in the law and society generally,” Judge Costa wrote.
“But in neglecting the strict limitations on our mandamus power to address the merits when we do not need to, the court engages in a different but also pernicious form of centralization: more power in the hands of appellate judges rather than the trial judge who has lived with the case for six years and knows the ins and outs of the parties’ representation,” he stated.
In a blistering seven-page dissent, Judge Jones said she was “not concerned about the ‘centralizing power’ inherent in MDL proceedings when they are confined, as the statute says, to pretrial matters or to bellwether cases to which both parties have expressly and unequivocally consented.
“I am even less concerned about the ‘centralized power’ of federal appellate judges when the downside of withholding such power … is the district court’s abuse of its limited jurisdiction, waste of trial resources, huge expenditure of legal resources on utterly unnecessary jurisdictional wrangling, and ultimately, the forfeiture of public confidence in a system that can achieve neither efficiency nor economy in handling mass tort cases,” Judge Jones wrote.