Today’s takeaway: never be so bold as to assume what an Article III judge will do. To the surprise of this author, and Judge Gregg Costa of the Fifth Circuit Court of Appeals, Judge Kinkeade of the Northern District of Texas, who presides over the Pinnacle Device MDL, is proceeding to trial with a set of consolidated actions, originating out of New York.

Judge Kinkeade’s decision to try these cases comes on the heels of a Fifth Circuit decision deriding his conclusion, that the Pinnacle Device defendants waived their so-called Lexecon objections, as “patently erroneous” and a clear abuse of discretion. Nevertheless, because the Fifth Circuit denied the defendants’ petition for a writ of mandamus—which would have prohibited the trials from proceeding as scheduled—Judge Kinkeade merely continued the trial until after the Fifth Circuit declined to rehear the case en banc.

Evidently, at least for the Pinnacle Device defendants here, a loss is a loss is a loss. And, contrary to this author’s earlier opinion, their defeat at the Fifth Circuit was very bitter indeed.