Dupree v. Younger, ___ S. Ct. ___, 2023 WL 3632755 (U.S. May 25, 2023), has nothing whatever to do with drugs, or devices, or product liability, but we bring it to our readers’ attention because of what it has to say about federal appellate procedure. In Dupree, a §1983 action, the defendant sought summary judgment for the plaintiff’s alleged failure to exhaust administrative remedies – and lost. Then the defendant went to trial, and lost again. Id. at *2-3.
Then the defendant appealed. But – oops – the defendant did not raise the exhaustion issue in his post-trial motion under Fed. R. Civ. P. 50(a). Id. at *3. In the Fourth Circuit, failure to renew any issue, even a purely legal one like exhaustion, on a Rule 50(a) post-trial motion waived that issue. Varghese v. Honeywell International, Inc., 424 F.3d 411, 422-23 (2005).
Dupree settled a longtime circuit court split in favor of not requiring appellants to go through the futile act of filing a post-trial motion over a “purely legal” issue that had already been denied in an earlier summary judgment order.
While factual issues addressed in summary-judgment denials are unreviewable on appeal, the same is not true of purely legal issues − that is, issues that can be resolved without reference to any disputed facts. . . . Because a district court’s purely legal conclusions at summary judgment are not superseded by later developments in the litigation, these rulings follow the “general rule” and merge into the final judgment, at which point they are reviewable on appeal.
2023 WL 3632755, at *4 (citations and quotation marks omitted). Unlike fact-bound disputed issues, “resolution of a pure question of law . . . is unaffected by future developments in the case.” Id.
The plaintiff argued that, because the order in question was “not a final decision,” under 28 U.S.C. §1291, it should be included within Rule 50(a), “regardless of whether the motion was decided on legal or factual grounds.” Id. at *5. The unanimous Court disagreed, because “§1291 does not insulate interlocutory orders from appellate scrutiny; it simply delays review until final judgment.” Id.
Because a purely legal question is, by definition, one whose answer is independent of disputed facts, factual development at trial will not change the district court’s answer. . . . So what would a repeat-motion requirement for legal questions typically amount to? For litigants, a copy and paste of summary-judgment motions into post-trial format. For district courts, the tedium of saying no twice. There is no reason to force litigants and district courts to undertake that empty exercise.
Id. Thus, “Even if a party can raise legal issues in a Rule 50 motion, nothing in the Rule requires her to do so.” Id. (emphasis original). Nor should the no-futile-act rule Dupree created be hard to administer. “Courts of appeals have long found it possible to separate factual from legal matters.” Id. (quoting Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 328 (2015)). Nor should the federal rules set traps for “for unwary litigants who think it futile to relitigate an already-rejected legal argument.” Id.
So, why does the Drug and Device Law Blog care?
Where have we seen a citation to the aforementioned Teva Pharmaceuticals case before?
Teva is the patent case Merck Sharp & Dohme Corp. v. Albrecht, 39 S. Ct. 1668, 1680 (2019), cited in holding that preemption decisions were questions of law:
[W]e consider these factual questions to be subsumed within an already tightly circumscribed legal analysis. And we do not believe that they warrant submission alone or together with the larger pre-emption question to a jury. Rather, in those contexts where we have determined that the question is “for the judge and not the jury,” we have also held that “courts may have to resolve subsidiary factual disputes” that are part and parcel of the broader legal question.
Id. at 1680 (quoting Teva, 574 U.S. at 328).
With Albrecht declaring that preemption – our clients’ strongest defense − is “a matter of law for the judge to decide” id. at 1679, the ins and outs of appeals from interlocutory orders involving such questions of law are something that both our side (when we lose) and the other side (when we win) should be aware of. We’ve often said that we like preemption being a question of law because, on the whole, we expect that our FDA-related facts will more persuasive than the other side’s, so we want courts to decide these issues as soon as possible.
We don’t see any difference between interlocutory motion-to-dismiss preemption issues and summary-judgment preemption issues, as far as the rule established in Dupree is concerned, so we’re happy to skip any unnecessary Rule 50(a)-related preliminaries, whether we won or lost below.
So that’s the Dupree takeaway from our perspective. Preemption is a question of law, and interlocutory orders deciding questions of law, after Dupree, are appealable after a trial without the need for us (or the other side, if they’ve suffered a preemption-related loss) to engage in any Rule 50(a) busywork. Anything that saves our clients time and money we like, so we like the new Dupree rule.