What We Like To See From A To Z

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We appreciate being on Joe Hollingsworth’s mailing list – we really do.  Much ofthe Aredia/Zometa stuff he sends us is manifestly blogworthy.  That, and all things being equal, we’d ratherdiscuss a defense win than a defense loss. Joe doesn’t send us his bad ones (although certain plaintiff lawyers dopass them along to us).

But not all bloggable decisions are createdequal.  It’s one thing to get summaryjudgment on warning causation because the prescribing doctor wouldn’t have doneanything differently, or because the plaintiff’s experts’ opinions were thrownout.  It’s another thing entirely to winon an issue of law that will impact many cases far into the indefinitefuture.  We appreciate what Joe’s tryingto do here – “win” a mass tort on the remand side of an MDL − because we’ve beenthere and done that, and it isn’t easy.
Mass torts post-MDL remand are like fightingzombies in the movies.  The other sidehas hundreds of plaintiffs, and the defense has to find ways to eliminate enoughof the zombies to reduce the assault to something that eventually can besettled for a reasonable sum.  In BoneScrew that required a summary judgment record of 182-2 (and an equally goodrecord on appeal).  In such a fight,decisions that move the generally applicable law in the defense direction areat a premium.  Not only can they dispatchbunches of zombies at the same time, but they build barriers to entry of newplaintiffs, and raise obstacles to litigation generally, thus hitting the otherside 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 ofdiversity of citizenship.  That actionwas swept into the Aredia-Zometa MDL, dismissed under TwIqbal,and the dismissal affirmed by the Sixth Circuit.  See Patterson v. NovartisPharmaceuticals Corp., 451 Fed. Appx. 495 (6th Cir. 2011).  But even dismissal with prejudice couldn’tstop this plaintiff.  Like a zombielooking for life after death, plaintiff filed yet another action, this time inthe District of Rhode Island.
The second action, however, was barred by therelevant (Massachusetts) statute of limitations.  First, the court held that the TwIqbaldismissal was a decision on the merits so that a Massachusetts tolling statutecould not resurrect the zombie claims.  Patterson,2012 WL 6618397, at *2-3.  OK, but we’renot all that interested in state-specific statute of limitationsdecisions.  So we move on.
Then (from our perspective) Patterson reallygets interesting.  The plaintiff allegedthat a bogus Aredia-Zometa class action, filed in Tennessee and nevercertified (see In re Aredia & Zometa Products LiabilityLitigation, 2007 WL 3012972 (M.D. Tenn. Oct. 10, 2007)) tolled theMassachusetts statute of limitations for several critical years despite theclass action being meritless.  Thatraised one of the blog’s (numerous) pet peeves – cross-jurisdictional class-action tolling.  The plaintiff claimedthat, 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 rejectedcross-jurisdictional class-action tolling. It found no basis for predicting that Massachusetts would recognize this“controversial” concept:
The Massachusetts Supreme Judicial court has notaddressed the issue of cross-jurisdictional class-actiontolling. . . .  [It] is asomewhat controversial theory.  Thejurisprudence [on cross-jurisdictional tolling] is not yet thoroughlydeveloped.  The majority of states havenot yet had occasion to address the issue directly and the states that haveconsidered cross-jurisdictional tolling have been split in their acceptance ofthe doctrine and the rationale for their decisions. . . .  One federal court has declined to import thedoctrine of cross-jurisdictional tolling into Massachusetts law in the absenceof authority that establishes that Massachusetts law recognizes such tolling.
Patterson, 2012 WL 6618397, at *5 (citationsand quotation marks omitted).
But the court in Patterson doesn’t contentitself with merely holding that there was no basis for predicting thatMassachusetts 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 federalrather than state court – shouldn’t even have advanced that kind oftheory.  Federal courts, as this blog haspointed 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 thiscomplaint in Federal Court in Rhode Island instead of in Massachusetts statecourt.  Plaintiffs are . . .empowered to choose the court system and venue in which litigation willproceed.  [They] were well aware thatMassachusetts state law on tolling would play a crucial, if not decisive, rolein this matter.  Notwithstanding thatimportant consideration, Plaintiffs chose a federal venue. . . .  [A] plaintiff should not choose a federalforum when it seeks to assert a novel state law theory.  We have warned, time and again, thatlitigants who reject a state forum in order to bring suit in federal courtunder diversity jurisdiction cannot expect that new trails will be blazed.  In effect Plaintiffs have asked the Court tostretch Massachusetts law to reach an unknown and unexploredfrontier. . . .  Without awell-plotted path showing an avenue of relief that the Massachusetts SupremeJudicial Court would take on cross-jurisdictional class-action tolling, and withno apparent consensus among the few states that have addressed the question,this Court declines Plaintiffs’ invitation and refuses to embark into anunexplored frontier and import cross-jurisdictional class-action tolling intoMassachusetts state law.
Patterson, 2012 WL 6618397, at *5-6 (citationsand quotation marks omitted).  Thispassage is simply one of the best statements of the principle of legalrestraint under the Erie doctrine that we have ever come across.
Sharp-eyed readers of Patterson may notethe citations to Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d805 (Tenn. 2000).  Patterson, 2012WL 6618397, at *4, *5 n.8.  Maestasis 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 − thatis, beating a mass tort on the remand side of the MDL − is the use of precedentas a weapon of mass destruction.  BoneScrew was won, in large part, because the other side realized that:  (1) their cases were really weak for manyreasons, and (2) because of those weaknesses, our side was using them toestablish favorable law that under staredecisis would help wipe out other hordes of zombies for decades to come (BuckmanCo. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), being ExhibitA).  We’re pleased to see the samestrategy being followed to good effect in Aredia/Zometa, and wewish Joe and his team much success in the coming years, especially on appeal.