Thursday, December 20, 2012
What We Like To See From A To Z
We appreciate being on Joe Hollingsworth’s mailing list – we really do. Much of the Aredia/Zometa stuff he sends us is manifestly blogworthy. That, and all things being equal, we’d rather discuss a defense win than a defense loss. Joe doesn’t send us his bad ones (although certain plaintiff lawyers do pass them along to us).
But not all bloggable decisions are created equal. It’s one thing to get summary judgment on warning causation because the prescribing doctor wouldn’t have done anything differently, or because the plaintiff’s experts’ opinions were thrown out. It’s another thing entirely to win on an issue of law that will impact many cases far into the indefinite future. We appreciate what Joe’s trying to do here – “win” a mass tort on the remand side of an MDL − because we’ve been there and done that, and it isn’t easy.
Mass torts post-MDL remand are like fighting zombies in the movies. The other side has hundreds of plaintiffs, and the defense has to find ways to eliminate enough of the zombies to reduce the assault to something that eventually can be settled for a reasonable sum. In Bone Screw that required a summary judgment record of 182-2 (and an equally good record on appeal). In such a fight, decisions that move the generally applicable law in the defense direction are at a premium. Not only can they dispatch bunches of zombies at the same time, but they build barriers to entry of new plaintiffs, and raise obstacles to litigation generally, thus hitting the other side where it hurts the most – in the litigation pipeline.
Patterson v. Novartis Pharmaceuticals, Inc., ___ F. Supp.2d ___, 2012 WL 6618397, slip op. (D.R.I. Dec. 19, 2012), is one of the really good ones. The plaintiff, a Massachusetts resident, decided to bring suit for some reason in D.C. federal court, on the basis of diversity of citizenship. That action was swept into the Aredia-Zometa MDL, dismissed under TwIqbal, and the dismissal affirmed by the Sixth Circuit. See Patterson v. Novartis Pharmaceuticals Corp., 451 Fed. Appx. 495 (6th Cir. 2011). But even dismissal with prejudice couldn’t stop this plaintiff. Like a zombie looking for life after death, plaintiff filed yet another action, this time in the District of Rhode Island.
The second action, however, was barred by the relevant (Massachusetts) statute of limitations. First, the court held that the TwIqbal dismissal was a decision on the merits so that a Massachusetts tolling statute could not resurrect the zombie claims. Patterson, 2012 WL 6618397, at *2-3. OK, but we’re not all that interested in state-specific statute of limitations decisions. So we move on.
Then (from our perspective) Patterson really gets interesting. The plaintiff alleged that a bogus Aredia-Zometa class action, filed in Tennessee and never certified (see In re Aredia & Zometa Products Liability Litigation, 2007 WL 3012972 (M.D. Tenn. Oct. 10, 2007)) tolled the Massachusetts statute of limitations for several critical years despite the class action being meritless. That raised one of the blog’s (numerous) pet peeves – cross-jurisdictional class-action tolling. The plaintiff claimed that, although no Massachusetts court had ever actually so held, it was a “virtual certainty” that Massachusetts would recognize this doctrine. Patterson, 2012 WL 6618397, at *4.
Patterson flatly rejected cross-jurisdictional class-action tolling. It found no basis for predicting that Massachusetts would recognize this “controversial” concept:
The Massachusetts Supreme Judicial court has not addressed the issue of cross-jurisdictional class-action tolling. . . . [It] is a somewhat controversial theory. The jurisprudence [on cross-jurisdictional tolling] is not yet thoroughly developed. The majority of states have not yet had occasion to address the issue directly and the states that have considered cross-jurisdictional tolling have been split in their acceptance of the doctrine and the rationale for their decisions. . . . One federal court has declined to import the doctrine of cross-jurisdictional tolling into Massachusetts law in the absence of authority that establishes that Massachusetts law recognizes such tolling.
Patterson, 2012 WL 6618397, at *5 (citations and quotation marks omitted).
But the court in Patterson doesn’t content itself with merely holding that there was no basis for predicting that Massachusetts would adopt an outré theory such as cross-jurisdictional class-action tolling. To our great pleasure, the court went further and declared that plaintiff – having filed in federal rather than state court – shouldn’t even have advanced that kind of theory. Federal courts, as this blog has pointed out time and time again, have no business predicting novel expansions of liability under state law. That’s the province (although we hope they don't) of state courts:
Plaintiffs, Massachusetts residents, chose to file this complaint in Federal Court in Rhode Island instead of in Massachusetts state court. Plaintiffs are . . . empowered to choose the court system and venue in which litigation will proceed. [They] were well aware that Massachusetts state law on tolling would play a crucial, if not decisive, role in this matter. Notwithstanding that important consideration, Plaintiffs chose a federal venue. . . . [A] plaintiff should not choose a federal forum when it seeks to assert a novel state law theory. We have warned, time and again, that litigants who reject a state forum in order to bring suit in federal court under diversity jurisdiction cannot expect that new trails will be blazed. In effect Plaintiffs have asked the Court to stretch Massachusetts law to reach an unknown and unexplored frontier. . . . Without a well-plotted path showing an avenue of relief that the Massachusetts Supreme Judicial Court would take on cross-jurisdictional class-action tolling, and with no apparent consensus among the few states that have addressed the question, this Court declines Plaintiffs’ invitation and refuses to embark into an unexplored frontier and import cross-jurisdictional class-action tolling into Massachusetts state law.
Patterson, 2012 WL 6618397, at *5-6 (citations and quotation marks omitted). This passage is simply one of the best statements of the principle of legal restraint under the Erie doctrine that we have ever come across.
Sharp-eyed readers of Patterson may note the citations to Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805 (Tenn. 2000). Patterson, 2012 WL 6618397, at *4, *5 n.8. Maestas is a Bone Screw case – one of many. Twelve years after Maestas was decided, it remains among the leading, persuasive precedents nationwide against cross-jurisdictional class-action tolling. Part of fighting off the mass tort zombies − that is, beating a mass tort on the remand side of the MDL − is the use of precedent as a weapon of mass destruction. Bone Screw was won, in large part, because the other side realized that: (1) their cases were really weak for many reasons, and (2) because of those weaknesses, our side was using them to establish favorable law that under stare decisis would help wipe out other hordes of zombies for decades to come (Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), being Exhibit A). We’re pleased to see the same strategy being followed to good effect in Aredia/Zometa, and we wish Joe and his team much success in the coming years, especially on appeal.