Friday, August 24, 2012

Procedural Notes

This week we came across a couple of cases dealing with procedural issues that we don’t see every day, but which have annoyed us in the past.  Since we don’t like being annoyed, we thought we’d pass them along.  While neither of these involves anything like complete research, they would provide easy starting points in the event that either issue has to be briefed in the future.


In the first case, Sherfey v. Johnson & Johnson, 2012 U.S. Dist. Lexis 116283 (E.D. Pa. Aug. 17, 2012), the defendant removed the matter, which involved an alleged drug overdose, to federal court.  So far so good.  The interesting procedural aspect of the case had to do with the use of a “related case” designation in the forms used to initiate the case in federal court:

[T]he defendants designated this action as related, under Local Rule 40.1, to two actions before the undersigned, one recently dismissed and one pending. . . .  As a result of that designation, this action was assigned to the undersigned.

2012 U.S. Dist. Lexis 116283, at *3.

While Sherfey involved a defendant’s use of a “related case” designation, we’ve heard stories for years of plaintiffs engaging in “related case” judge-shopping, particularly where novel industry-wide product liability theories against cigarette and firearm manufacturers were involved.  Thus, we were interested in anything that discussed the limits on such designations.  If you were involved in this litigation, you know what we're talking about.  Sherfey didn’t disappoint.  Just because the same active ingredient is involved doesn’t make for a “related case” − differing products (infant’s vs. children’s strength), purchase dates, sales locations, and damages all mitigate against the matters being considered "related" for purposes of assignment to the same judge.

[T]he general facts giving rise to the claims in the MDL, [another case], and this case are similar and may well require similar proof.  That this case is a wrongful death suit, however, ensures that factual issues relating to the plaintiffs’ pre-injury behavior, injury, and causation will be distinct. . . .  The plaintiffs in this action allege the purchase of a different medicine on a different date and from a different retailer than those in [the other personal injury case], and they set forth a categorically different injury than that [economic loss] alleged by the plaintiffs in the MDL.

2012 U.S. Dist. Lexis 116283, at *7.  The court observed that “related case” designations “should be applied sparingly because the policies underpinning the system of random assignment encourage transparency, fairness, and avoiding the appearance of arbitrariness.”  Id.

Anyway, while Sherfey isn’t particularly lengthy, it does cite some cases − providing a quick start to research in this arcane area, should it arise again.  Since plaintiffs, by definition since they file first, have far more opportunities for judge-shopping than defendants, we want to keep Sherfey in mind. What better way to do that than with a blogpost?

The second case, In re Asbestos Products Liability Litigation, MDL 875, 2012 U.S. Dist. Lexis 106515 (E.D. Pa. July 31, 2012), obviously doesn’t involve prescription medical products at all.  It does, however, address another annoying plaintiff procedural tactic − misuse of corporate designee depositions under Rule 30(b)(6) as fishing expeditions.  In Asbestos, the plaintiffs issued deposition notices on scads of defendants − to “all counsel of record” for the 40 defendants sued.  2012 U.S. Dist. Lexis 106515, at *6-7.  “The information sought related to ‘any asbestos-containing products or materials dating from 1940 through the date of this notice.’”  Id. at *7.

Thankfully, the magistrate judge was not about to let plaintiffs get away with rummaging through decades of product information without some showing of good cause.  Rather, the court required an independent showing of exposure to each defendant’s products:

[T]here is no evidence that the decedent was directly exposed to any asbestos-containing product of these Defendants.  Plaintiffs are not entitled to testimony of a corporate representative without some evidence to connect a particular product/products of Defendants to the decedent's alleged asbestos exposure.  Noticing a 30(b)(6) deposition to obtain testimony from a defendant identifying all asbestos products it supplied, sold or distributed over a sixty plus year period is not proper.

2012 U.S. Dist. Lexis 106515, at *10.

Since our clients are corporations, and most plaintiffs are not, Rule 30(b)(6) is another avenue for plaintiffs to engage in asymmetrical discovery in order to drive up our client's costs, and for other vexatious purposes.  Again, while not on our agenda at the moment, Rule 30(b)(6) has been before and probably will be again.  Asbestos al;so cites some case law (although not as much), so it’s another easy avenue for starting research, if and when it might be needed.  So we pass it along.

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