In Re: DePuy Orthopaedics, Inc.
2017 U.S. App. LEXIS 16809
| 5th Cir. | 2017Background
- MDL consolidated over 9,300 product-liability suits alleging defects in the Pinnacle hip implant; some cases were transferred, others were direct-filed in the Northern District of Texas.
- The MDL court implemented a bellwether process (CMO 8) to select representative cases for grouped trials to assess claims and settlement ranges.
- Defendants (petitioners) gave communications during the bellwether-selection process that plaintiffs and the special master read as waivers of Lexecon (venue/remand) objections for trials in Dallas; defendants later contended any waivers were limited to the initial bellwethers.
- The MDL court ruled defendants had globally and unequivocally waived venue/personal-jurisdiction objections and scheduled additional bellwether trials (including New York plaintiffs) in Texas; defendants sought mandamus to prevent further trials.
- The panel found the district court erred in holding a global, unambiguous Lexecon waiver (waivers must be clear and unambiguous) and that defendants showed a clear right to relief on that issue, but a majority denied mandamus because defendants have an adequate remedy by direct appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of Lexecon waiver (global vs. limited) | Waiver statements and special-master reports show defendants agreed to waive venue objections for any MDL cases tried in Dallas (global waiver). | Waivers contained limiting language and context (initial bellwether/next round) and thus were limited to specific bellwether selections, not a permanent global waiver. | The court held waivers were not clear and unambiguous as global; the district court patently erred in finding a permanent, worldwide waiver. |
| Standard for proving Lexecon waiver | N/A (disputed factual/legal application) | Waiver of §1407 remand rights must be clear and unambiguous given statutory presumption favoring remand. | The court adopts a ‘‘clear and unambiguous’’ standard for Lexecon waivers. |
| Appropriateness of mandamus to stop scheduled trial | Plaintiffs: mandamus not warranted; ordinary appellate process suffices. | Defendants: mandamus appropriate because error affects thousands of cases and would cause irreparable strategic/hardship costs. | Although the court found the district court abused its discretion and relief would be appropriate in circumstances, the majority denied mandamus because an adequate remedy by direct appeal exists. |
| Adequacy of ordinary appeal as remedy | Appeal provides no reason to block trial; plaintiffs argued defendants can appeal after judgment. | Defendants argued appeal is inadequate due to high costs, settlement pressure, and risk of repeated error across thousands of cases. | The court held ordinary appeal is adequate here (de novo review of jurisdiction; no irreversible non-monetary harm), so mandamus is not available. |
Key Cases Cited
- Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (limits MDL courts to pretrial proceedings absent a valid waiver)
- Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004) (sets demanding three-part mandamus test: clear right, appropriateness, and lack of alternative remedy)
- In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) (en banc) (mandamus appropriate where appeal provides no remedy for patently erroneous venue decisions)
- In re Lloyd’s Register North America, Inc., 780 F.3d 283 (5th Cir. 2015) (discusses mandamus standards and that litigation costs alone generally do not render appeal inadequate)