Back in September, we reported on Flagg v. Stryker Corp., 801 F.3d 456 (5th Cir. 2015), which reversed a nearly ten-year trend in Louisiana product liability litigation recognizing diversity jurisdiction where plaintiffs improperly sued in-state medical malpractice defendants in violation of Louisiana’s medical review board pre-submission requirement.
Literally hundreds of cases have been removed on this basis, and the law seemed so settled in favor of the defense position that many plaintiffs (including in Flagg) had stopped fighting removal. All of these cases were potentially subject to nullification for lack of subject matter jurisdiction.
Well, not so fast. On November 5, 2015, the Fifth Circuit granted en banc review. Flagg v. Stryker Corp., 805 F.3d 610 (5th Cir. 2015). Here are copies of the defendant’s supplemental brief in support of en banc affirmance, and of the amicus brief filed by PLAC in support of the defendant’s position - both filed earlier this month.
This kind of issue is rarely appealed, yet alone decided by an en banc court of appeals. The result thus is likely to be very influential. Here’s hoping an ultimately favorable outcome to this long-running dispute.