Today’s guest post is by Reed Smith Houston office associate Curtis Waldo. Given the Noachic weather down there recently, one might ask “where’s Waldo?” The answer is safe and sound, if not quite high and dry. Curt is really dedicated – we offered him more time, but he said he didn’t need it. In this post, Curt is acting the part of our on-the-scene reporter from last week’s Pinnacle Hip mandamus hearing before the Fifth Circuit. Since things might move rather quickly (weather permitting) we wanted to bring his report to our readers ASAP. As always our guest posters are 100% responsible for the content of their posts. Curt deserves all the credit, and any blame, for what follows.

**********

First, thank you for all the support and well wishes sent to those of us in Southeast Texas riding out Hurricane Harvey. It is a scary and challenging time, but we will recover. Two days before Harvey’s arrival, as John Sullivan posted last week, a Fifth Circuit panel in Houston hosted a fascinating oral argument on the writ of mandamus filed by defendants in the Pinnacle hip implant litigation. As a Reed Smith associate who works three blocks from the courthouse, I was fortunate enough to attend.

The writ has been covered by this blog here and here. In sum, there are two issues before the court: (1) did the district court err in holding defendants waived their personal jurisdiction rights?, and (2) if the district court did err, is it the kind of error that warrants the “extraordinary remedy” of a writ of mandamus? The oral argument was divided about 50-50 between these two questions. Defendants argue they did not waive their personal jurisdiction rights; plaintiffs argue they did. Defendants argue a writ of mandamus is appropriate; plaintiffs argue it is not. The panel was comprised of Judges Jerry Smith, Edith Jones, and Gregg Costa.

First to argue was John Beisner of Skadden Arps for defendants. Mr. Beisner began with an analogy: Your acquaintance invites you to dinner once. You agree. Your acquaintance invites you to dinner a second time. You agree. By agreeing to attend two dinners, have you now agreed to attend all dinners that may be called by the acquaintance in the future?

As tends to happen at oral argument, the judges wasted little time in interrupting. Judge Smith: Even if this was error, why a writ of mandamus? Defendants could wait until the trial concluded and appeal the jurisdiction waiver at that time.

Mr. Beisner’s answer was twofold: (1) why waste everyone’s time with an unnecessary trial if the appellate court can decide the issue at the outset, and (2) if plaintiff’s waiver theory is believed, defendants have waived their personal jurisdiction rights in 9,300 pending cases, which is exactly the sort of situation that is “not effectively reviewable” by a normal appeal. As Judge Jones later pointed out, if the plaintiffs and defendants spend $50 million trying cases that are later obviated on appeal, does that $50 million not come straight from the pockets of plaintiffs and defendants, and right into the pockets of lawyers?

While this argument might make sense to anyone who is not a lawyer, Judge Costa pointed out rightly the slippery slope down which that argument might take them—should appellate courts step into district court proceedings at any stage where their input would be dispositive? One could imagine such a system, but it is not the one we have in the federal courts. Surely, Judge Costa asked, avoiding expense by itself is not enough to justify mandamus relief? Mr. Beisner rightly avoided this logical sinkhole and clarified that no, it is not merely the avoidance of expense but also the likelihood of recurrence, which here is profound given the upcoming bellwether trials and thousands of other cases on the horizon where defendants have allegedly waived their constitutional rights.

Moving on to the waiver issue, Mr. Beisner framed the issue as revolving around the interpretation of a single email sent by defendants’ counsel in December 2014. By agreeing “to allow the Court to select the next round of bellwether cases,” surely defendants were not agreeing to waive their right to object to personal jurisdiction in all 9,300 cases in the MDL and effectively agreeing that all 9,300 cases could be tried in Texas. This, Mr. Beisner correctly emphasized, was simply not how the MDL process works. The MDL system is for pre-trial purposes only.

Let us take a moment to consider that in a given day, we may send 100 emails or more, some of which we put more thought into than others. I have never had one of my emails quoted at length in appellate briefs and dissected by a panel of Fifth Circuit judges, but I can’t imagine it is a good feeling.

Mr. Beisner had to explain why the email at issue referred to “bellwether cases,” and not only the bellwether case that would be tried. He clarified that the case(s) to be tried in a single bellwether trial came from a larger pool of cases (but still not the 9,300 in the MDL), and it was this slightly larger subset that the email was referring to. The judges appeared both intrigued and confused at the system used by the district court to select bellwether cases. I thought Mr. Beisner made his point, but it is hard to say. In any event, Mr. Beisner came back to his take-home message: to waive one’s constitutional rights, surely such waiver must be clear and unambiguous, which here it was decidedly not. Overall, the judges’ questions of Mr. Beisner on the waiver issue were not nearly as hard-hitting as the questions on the propriety of mandamus.

Next it was plaintiffs’ turn, for which plaintiffs turned to Kenneth Starr—former D.C. Circuit judge, solicitor general, law professor, Clinton investigator, and Baylor non-investigator. Mr. Starr began his argument by quoting the All Writs Act from 1789. Unsurprisingly, the panel did not let him finish his quote, and Judge Smith injected with the first question, which similar to his first question during Mr. Beisner’s argument cut to the chase: Just what exactly are plaintiffs saying defendants waived? Mr. Starr’s response was blunt: in theory, defendants had waived their right to object to personal jurisdiction in all 9,300 MDL cases. Mr. Starr hedged by saying this was only in theory, and plaintiffs did not plan to try 9,300 cases in Texas. In reality, per Mr. Starr, this was only about the two bellwether trials set in the Northern District of Texas. Despite Mr. Starr’s reassurances, his answer about the scope of the purported waiver seemed to make the panel uncomfortable.

Judge Jones took the opportunity to highlight what was really at stake—the big “M”. While she did not say so explicitly, what is really “unreviewable” is the shift in momentum that occurs when a big verdict comes in while an appeal is pending. Mr. Starr fought back: This isn’t about momentum or settlement; this is about defendants trying to cut in line. While the law may be under-developed on the issue of what contacts in a direct file case are sufficient to allow for jurisdiction, mandamus is not the proper vehicle to develop the law. What is at stake, according to Mr. Starr, is our system of permitting trial courts to conduct trials, and leaving appeals for a later, orderly process.

Mr. Starr got out his talking points on his waiver argument, but it was hard to say he made any impact on the judges here. Perhaps sensing that his stronger point was the impropriety of mandamus, Mr. Starr highlighted that defendants had an adequate remedy (they could appeal!), and the waiver issue was not so “clear and indistinguishable” as to justify mandamus. Moreover, Mr. Starr brought up (for the first time by anyone) that a trial was actually set to start in September. Lawyers and witnesses were ready to go, and his clients wanted their day in court. Judge Jones countered that while plaintiffs may want their day in court, it would do them no good to have their verdict overturned a year later.

Ultimately it was a fascinating hour of argument—the waiver issue appears to revolve around a couple sentences in a CMO and a lawyer’s email from three years ago. The mandamus issue cuts to the core of what role appeals courts should play in the federal system. And overriding all of the argument was the judges’ curiosity and at times bafflement at the MDL system. MDLs are supposed to encourage efficiency and coordination, but how do we achieve them while at the same time serving other purposes of the judiciary such as a deliberative appeals process, consistency, and finality? What role should the court assign practical litigation considerations such as settlement momentum? The courtroom was packed with law clerks and at least one district court judge, and the atmosphere of the courtroom had an academic and suspenseful quality. Given the upcoming trial date, we should expect a decision soon.