• United States Court of Appeals, Fifth Circuit
  • 17-10812
  • JERRY E. SMITH, CIRCUIT JUDGE
Over 9300 plaintiffs alleged the defendants designed, manufactured and distributed an allegedly defective hip-implant device. Their lawsuits were transferred to the Northern District of Texas by the Judicial Panel on Multi-district litigation. While an MDL court can conduct all pretrial proceedings, it can only try cases over which it had venue without its MDL status, unless the parties otherwise waive arguments regarding venue (a " Lexecon objection"). The parties worked with a special master to identify cases to be tried as "bellweather" cases. The special master's report to the MDL court proposed four trials from a group of eight, and stated that the defendants would not raise Lexecon objections. A first trial, of a single case, resulted in a defense verdict. A second trial, consisting of five cases filed by Texas plaintiffs consolidated as a bellweather trial, resulted in a plaintiffs' verdict. A third trial, consisting of six cases filed by California plaintiffs, resulted in a plaintiffs' verdict. Prior to the third trial, the defendants argued they had only waived their venue objections for the first two trials; the MDL court found that they had waived them for all MDL trials. When the MDL court selected ten cases involving New York plaintiffs for a fourth bellweather trial, the defendants sought a writ of mandamus. The court agreed that the defendants only waived their venue arguments with respect to the first two trials, and that the MDL court erred by declaring a global and permanent waiver to venue and personal jurisdiction. It also held that mandamus relief would otherwise be appropriate, given that the MDL court apparently intended to apply the "waiver" to all trials. But, the court held, the defendants had not shown that they had no other adequate means to obtain relief, because the defendants could appeal from any adverse verdict on personal jurisdiction grounds. The court held that, while the defendants would undoubtedly incur significant defense fees in the trials, this was not a basis upon which to order mandamus The court accordingly denied the petition for a writ of mandamus. In re Depuy Orthopaedics, Inc. Fifth Circuit, No. 17-10812, 8/31/17.

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