September 18, 2017: The Day That Justice Dies?

Judge Postpones Hip Implant Bellwether After Panel Cites His 'Grave Error'

Amanda Bronstad, Texas Lawyer

September 1, 2017    

A Dallas federal judge has delayed a planned Sept. 5 hip implant trial until later this month after a split federal appeals panel requested that he halt the proceedings due to his own "grave error."

In a Thursday opinion, two of three judges on a panel of the U.S. Court of Appeals for the Fifth Circuit refused to grant a petition for writ of mandamus filed by DePuy Orthopaedics Inc. to halt the trial. But two of the three also concluded that U.S. District Judge Ed Kinkeade, who is presiding over 9,300 cases alleging DePuy's Pinnacle hip implants are defective, committed a "grave error" in allowing certain trials to take place before him, including the one scheduled this month on behalf of eight New York plaintiffs.

"Despite finding serious error, a majority of this panel denies the writ that petitioners seek to prohibit the district court from proceeding to trial on plaintiffs' cases," wrote Circuit Judge Jerry Smith. "A majority requests the district court to vacate its ruling on waiver and to withdraw its order for a trial beginning September 5, 2017."

John Beisner, a Washington, D.C., partner at New York's Skadden, Arps, Slate, Meagher & Flom who represents Johnson & Johnson, DePuy's parent company, had called on Kinkeade to halt the trial, which is the fourth bellwether in the multidistrict litigation over the Pinnacle.

"We are pleased that the Fifth Circuit has determined that the MDL court does not have jurisdiction to conduct its planned trial of the claims of eight New York plaintiffs in a Texas courtroom," Beisner wrote in an emailed statement after the ruling.

Lead plaintiffs attorney Mark Lanier called it the "wildest opinion I've ever seen."

"What this small panel has tried to do is change the law in the Fifth Circuit on a mandamus record, and that's really frowned about," said Lanier, of The Lanier Law Firm in Houston, who was joined in the appeal by former U.S. Solicitor General Kenneth Starr.

In addition to this month's trial, the ruling could impact a separate case before the Fifth Circuit in which Johnson & Johnson has raised the same venue arguments in appealing a $1.04 billion verdict in the most recent Pinnacle trial. Oral argument on that appeal hasn't yet been scheduled.

"Why this court issues an order on another court's case, which is just an advisory opinion, is just absurd," said Lanier. "It's judicial activism."

Lanier filed a petition for rehearing en banc on Friday. Later that afternoon, Kinkeade ordered the trial delayed until Sept. 18.

Kinkeade appeared to anticipate the Fifth Circuit's intervention. On Aug. 25, he ordered that this month's trial would "be the final bellwether case tried in the Dallas division of the Northern District of Texas" under which both sides have waived venue.

It's an unusual turn of events for the Pinnacle litigation, in which Johnson & Johnson has appealed two other verdicts in Kinkeade's courtroom, both involving consolidated cases that led to gargantuan awards in 2016. Johnson & Johnson won the first verdict in 2014. But a second trial ended with a verdict of $502 million awarded to five Texas plaintiffs, while the third gave $1.04 billion verdict to six California plaintiffs.

Johnson & Johnson has argued that Kinkeade lacked jurisdiction over the trials involving California and New York plaintiffs. MDL judges are assigned to oversee pretrial matters with the intention of sending cases back to their original courts for trial. But defendants often waive that right under the U.S. Supreme Court's 1998 holding in Lexecon v. Milberg Weiss Bershad Hynes & Lerach, which allows bellwether trials to proceed before an MDL judge.

Johnson & Johnson claims it waived that right as to the first and second trials, but not the third or fourth. Plaintiffs' attorneys have insisted that Johnson & Johnson agreed to a global waiver over all the trials.

Contact Amanda Bronstad at abronstad@alm.com. On Twitter: @abronstadlaw

Case: 17-10812 Document: 00514088377 Page: 8 Date Filed: 07/25/2017 

TABLE OF AUTHORITIES Cases 

Page(s) 

Abelesz v. OTP Bank,
692 F.3d 638 (7th Cir. 2012) .........................................................................27 

In re Allstate Insurance Co.,
8 F.3d 219 (5th Cir. 1993) .............................................................................16 

In re American Airlines, Inc.,
972 F.2d 605 (5th Cir. 1992) .........................................................................16 

Armstrong v. LaSalle Bank National Association,
552 F.3d 613 (7th Cir. 2009) ...................................................... 21, 22, 24, 26 

In re Avantel, S.A.,
343 F.3d 311 (5th Cir. 2003) .........................................................................15 

In re Bausch & Lomb Inc. Contact Lens Solution Products Liability Litigation, 

MDL No. 1785, 2007 WL 3046682 (D.S.C. Oct. 11, 2007)................... 19-20 

Bristol-Myers Squibb Co. v. Superior Court,
137 S. Ct. 1773 (2017)...................................................................................17 

In re Burlington North, Inc.,
822 F.2d 518 (5th Cir. 1987) .........................................................................28 

Cheney v. U.S. District Court for D.C.,
542 U.S. 367 (2004)................................................................................ 16, 17 

In re Chesson,
897 F.2d 156 (5th Cir. 1990) .........................................................................15 

In re Chevron USA, Inc.,
109 F.3d 1016 (5th Cir. 1997) ............................................................ 4, 17, 29 

In re Chinese Manufactured Drywall Products Liability Litigation,
767 F. Supp. 2d 649 (E.D. La. 2011) ............................................................19 

vii 

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City of New Orleans v. Municipal Administrative Services, Inc.,
376 F.3d 501 (5th Cir. 2004) .........................................................................23 

In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation, 

787 F. Supp. 2d 1358 (J.P.M.L. 2011) ............................................................2 

In re E.E.O.C.,
709 F.2d 392 (5th Cir. 1983) ................................................................... 28-29 

In re FMC Corp. Patent Litigation,
422 F. Supp. 1163 (J.P.M.L. 1976) ........................................................ 18, 20 

In re Ford Motor Co.,
591 F.3d 406 (5th Cir. 2009) .................................................................. 28, 29 

In re Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, 

MDL No. 2046, 2011 WL 1232352 (S.D. Tex. Mar. 31, 2011) ............. 18-19 

Hebert v. Exxon Corp.,
953 F.2d 936 (5th Cir. 1992) .........................................................................17 

In re Impact Absorbent Technologies, Inc.,
106 F.3d 400, 1996 WL 765327 (6th Cir. 1996)...........................................27 

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
523 U.S. 26 (1998).....................................................................................4, 20 

Northside Iron & Metal Co. v. Dobson & Johnson, Inc.,
480 F.2d 798 (5th Cir. 1973) ................................................................... 22-23 

In re Occidental Petroleum Corp.,
217 F.3d 293 (5th Cir. 2000) .........................................................................16 

Point Landing, Inc. v. Omni Capital International, Ltd.,
795 F.2d 415 (5th Cir. 1986) .........................................................................18 

In re Reyes,
814 F.2d 168 (5th Cir. 1987) .........................................................................16 

In re Roman Catholic Diocese of Albany, N.Y., Inc.,
745 F.3d 30 (2d Cir. 2014) ............................................................................27 

viii 

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Southern Pacific Transportation Co. v. San Antonio,
748 F.2d 266 (5th Cir. 1984) .........................................................................16 

Schlagenhauf v. Holder,
379 U.S. 104 (1964).......................................................................................29 

Sunbelt Corp. v. Noble, Denton & Associates, Inc.,
5 F.3d 28 (3d Cir. 1993) .......................................................................... 27-28 

United States v. Denson,
603 F.2d 1143 (5th Cir. 1979) .......................................................................16 

In re Volkswagen of America, Inc.,
545 F.3d 304 (5th Cir. 2008) .................................................................. 17, 28 

Wilson v. Belin,
20 F.3d 644 (5th Cir. 1994) ...........................................................................17 

In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices and
Products Liability Litigation,
MDL No. 2100, 2011 WL 1375011 (S.D. Ill. Apr. 12, 2011) ............... 11, 19 

Statutes 

28 U.S.C. § 1407........................................................................................................4 28 U.S.C. § 1651(a) ...................................................................................................1 Other Authority
Manual for Complex Litigation (Fourth) § 22.36 .....................................................4 

ix 

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JURISDICTIONAL STATEMENT 

Jurisdiction of this Court is invoked under the All Writs Act, which provides in relevant part that “all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). 

RELIEF SOUGHT 

Petitioners seek a writ from this Court prohibiting the district court from trying cases in the MDL proceeding over which it lacks personal jurisdiction. Petitioners seek expedited treatment of the petition and a ruling by September 5, 2017 because trial is scheduled to commence on that date. 

ISSUE PRESENTED 

The issue presented is: whether the MDL court clearly erred in concluding that by waiving venue and personal jurisdiction objections for trials of two bellwether cases, defendants waived personal jurisdiction with respect to thousands of cases, for perpetual trials, notwithstanding the clear language of 28 U.S.C. § 1407(a) that MDL cases “shall be remanded” to transferor courts for trial. 

It is undisputed that a Texas court would ordinarily lack personal jurisdiction to try these cases because none of the parties is based in Texas and no relevant conduct is alleged to have occurred there. The MDL court has previously suggested that it could act as a New York court because it entered a direct filing 

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order that enables plaintiffs to bypass the MDL transfer process. Defendants have submitted several rounds of briefing to the MDL court explaining that it does not have this authority, and presumably for that reason, the court has now embraced a different but equally erroneous approach: holding that defendants’ waiver of venue objections for the first two bellwether trials was a perpetual waiver of personal jurisdiction and venue for the entire litigation. In short, the MDL court has decided that it is no longer constrained by the MDL statute or personal jurisdiction principles and can order trials of as many cases as it chooses instead of remanding these cases to courts of proper jurisdiction, as required by the MDL statute and basic jurisdictional principles. 

FACTS NECESSARY TO UNDERSTAND THE ISSUE PRESENTED A. The MDL Proceeding 

The proceeding below was established by the Judicial Panel on Multidistrict Litigation in 2011 to “promote the just and efficient conduct of the litigation” of cases involving allegations that the “Pinnacle Acetabular Cup System, a device used in hip replacement surgery, was defectively designed,” and that “defendants failed to provide adequate warnings concerning the device.” In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prods. Liab. Litig., 787 F. Supp. 2d 1358, 1360 (J.P.M.L. 2011). 

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The MDL proceeding began as three cases, see id. at 1359, but has now grown to more than 9,300. Some cases have been filed pursuant to the MDL court’s “direct-file order,” a provision set forth in the MDL court’s initial case management order that was adopted in 2011 after consultation with the Plaintiffs’ Executive Committee (“PEC”) and petitioners. (See Case Mgmt. Order #1 (“CMO 1”) ¶¶ 13-17, MDL Dkt. No. 20 (N.D. Tex. June 29, 2011).)1 

The direct-file order provides that, “[i]n order to eliminate delays associated with the transfer of cases in or removed to other federal district courts to this Court, and to promote judicial efficiency, any plaintiff whose case would be subject to transfer to MDL 2244 may file his or her case directly in the MDL proceedings in the Northern District of Texas.” (Id. ¶ 13.) The order plainly contemplates that such filings are for pretrial purposes only, expressly providing that, “[u]pon completion of all pretrial proceedings applicable to a case filed directly in the [MDL court], this Court may transfer the case, pursuant to 28 U.S.C. § 1404, to a court of appropriate jurisdiction for trial.” (Id. ¶ 17 (emphasis added).) The direct-file order also expressly provides that the inclusion of any action in the MDL proceeding under the order’s auspices “shall not constitute a determination by this Court that jurisdiction or venue is proper in this District.” 

(Id. (emphasis added).) 

1 

Citations to “MDL Dkt.” are to district court docket number 3:11-md-02244-K. 3 

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B. The Evolving Bellwether Trial Process 

The MDL court also established a bellwether trial protocol after consulting petitioners and the PEC. (See generally Case Mgmt. Order No. 8 (“CMO 8”), MDL Dkt. No. 190 (N.D. Tex. Aug. 14, 2012).) 

As recognized by the Manual for Complex Litigation (Fourth) (2004), the purpose of bellwether trials is to “produce a sufficient number of representative verdicts and settlements to enable the parties and the court to determine the nature and strength of the claims, whether they can be fairly developed and litigated on a group basis, and what range of values the cases may have if resolution is attempted on a group basis.” Id. § 22.315. This Court, too, has acknowledged this purpose of bellwether trials. In re Chevron USA, Inc., 109 F.3d 1016, 1019 (5th Cir. 1997). 

Nevertheless, the MDL statute limits an MDL court’s authority to pretrial matters, expressly providing that cases transferred to MDL proceedings be remanded at the conclusion of pretrial matters. 28 U.S.C. § 1407(a). As the Supreme Court has explained, an MDL court conducting “pretrial proceedings” has “no . . . authority” to “assign a transferred case to itself for trial.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 28 (1998). Thus, it is well settled that MDL courts may not try transferred cases absent consent from the parties. Manual for Complex Litigation (Fourth) § 22.36. 

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As detailed in the following sections, petitioners consented to two trials in the proceeding below to further the goal of trying bellwether cases – but not to subsequent trials, including the upcoming September trial at issue here. 

1. The First Bellwether Trial
The MDL court provided for the first trial by way of CMO 8, which directed 

the parties to “file their recommended selection of 4-6 cases to be included in an initial bellwether trial process with the Court by September 2, 2013”; set deadlines for other pretrial proceedings; and required that the “first bellwether case shall be ready for trial by September 1, 2014.” (CMO 8 ¶¶ 7, 17.) Notably, CMO 8 did not purport to govern anything other than the “initial” bellwether process. 

Thereafter, expressly “[p]ursuant to Case Management Order No. 8,” which concerned only the first bellwether selection, “the Special Master . . . conferred with” petitioners and the PEC and reported that they had “agreed to the following relating to selection of bellwether trials.” (Special Master’s Report Relating to Bellwether Trial Selection Protocol at 1, MDL Dkt. No. 247 (N.D. Tex. Jan. 16, 2013).) First, “[b]y April 1, 2013,” the PEC was to identify “which of the plaintiffs” in the MDL “have waived venue to allow their case to be tried” by the MDL court, a deadline that applied to the PEC and not petitioners because petitioners had “already agreed that they will not raise a venue objection (i.e., a Lexecon objection) to any cases in the MDL proceeding being tried in the” MDL. 

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(Id. ¶ 1.) Second, by June 3, 2013, the parties were to each select four cases as “proposed bellwether trial candidates” to establish “an initial pool of eight cases.” (Id. ¶ 2.) The parties were then to agree on four cases to submit to the MDL court by September 2, 2013, after which the MDL court was to “establish the order in which those four cases w[ould] be tried.” (Id. ¶ 4 (emphasis added).) 

During the course of selecting proposed bellwether candidates pursuant to CMO 8 and this Report, a disagreement emerged between petitioners and the PEC over whether multiple cases should be consolidated for trial. After the PEC filed its proposal for selecting bellwether trials, which included a request for consolidation, petitioners responded that they did “not agree to waive their Lexecon objections for a prejudicial, multi-plaintiff trial.” (Defs.’ Resp. to Pls.’ Proposal for Bellwether Trial Selection Process at 1, MDL Dkt. No. 341 (N.D. Tex. Sept. 6, 2013).) 

At a status conference several days later, petitioners’ lead counsel reaffirmed the waiver noted in the Special Master’s report – which, as described above, related only to the “initial bellwether” process – stating, “we have waived the [Lexecon] restriction on . . . these cases, consistent with the report that the [S]pecial [M]aster gave to the court earlier.” (Tr. of Status Conference 5:8-11, MDL Dkt. No. 344 (N.D. Tex. Sept. 10, 2013) (emphasis added).) Counsel also noted petitioners’ intention to object to any consolidation of claims in the first trial. 

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Counsel nowhere intimated a broader or perpetual waiver that would extend beyond the “initial bellwether” process as to which petitioners had waived Lexecon objections. 

Ultimately, the court selected a single case nominated by plaintiffs’ counsel and involving a Montana plaintiff for the first bellwether trial, Paoli v. DePuy Orthopaedics, Inc., No. 3:12-cv-04975-K (N.D. Tex.). The jury found for petitioners on each of plaintiffs’ causes of action. 

2. The Second Trial (“Aoki”)
After the defense prevailed in Paoli, the MDL court abandoned the original 

bellwether process, jettisoned the remaining candidates in the previously selected pool of potential bellwether trial cases sua sponte, and directed the parties to propose new candidates for a second bellwether trial. 

On December 5, 2014, petitioners’ counsel emailed the Special Master suggesting a number of additional bellwether candidates expressly for the purposes of “the next bellwether trial,” consistent with the MDL court’s request that the parties identify plaintiffs with a “revision due to an apparent metal reaction to metal wear debris,” but without “any issue with the angle at which the cups were implanted” as was the case in the Paoli trial. (Emails between Seth Roberts and Hon. James Stanton, Dec. 5-8, 2014 (App. 25-28) (emphasis added).) The Special Master responded the same day and requested that petitioners “confirm DePuy is 

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willing to waive Lexecon [objections] for all MDL cases to be tried in Dallas.” (Id.) Presuming that the Special Master’s request pertained to the second trial that was the subject of petitioners’ email – but also clarifying this presumption – petitioners responded: “Confirmed. In order to allow the Court to select the next round of bellwether cases from a broader pool of cases that can be tried in Dallas, defendants have agreed to waive Lexecon objections to cases in the MDL proceeding being tried there.” (Id. (emphasis added).) The Special Master later issued a report, stating: “In order to insure the broadest pool of cases for the bellwether selection process, Defendants have agreed they will not raise a venue objection (i.e., a Lexecon objection) to any cases in the MDL being tried in the Northern District of Texas.” (Special Master’s Report Relating to Bellwether Trial Selection at 1, MDL Dkt. No. 490 (N.D. Tex. Feb. 17, 2015).) 

The MDL court thereafter entered an order identifying ten candidates for the second trial. (Order on Bellwether Trials at 1, MDL Dkt. No. 491 (N.D. Tex. Feb. 18, 2015).) The order did not specify whether the court intended to try more than one plaintiff’s claims, but less than a month before trial, the MDL court announced by way of an email from the Special Master that it had decided sua sponte to consolidate five cases involving Texas plaintiffs for trial. Petitioners moved for an order denying consolidation. (See Defs.’ Mot. for Order Den. Consolidated Trial 

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Of Bellwether Cases, Aoki v. DePuy Orthopaedics, Inc., No. 3:13-cv-01071-K, Dkt. No. 79 (N.D. Tex. Dec. 30, 2015).) That motion was denied. 

A prejudicial and confusing five-plaintiff trial followed. The proceeding was rife with inflammatory and irrelevant evidence – including, for example, plaintiffs’ counsel’s gratuitous assertions that nonparty subsidiaries of Johnson & Johnson had made payments to “Saddam’s henchmen”; hearsay assertions from a book about supposedly improper scientific articles planted in the literature by “Big Tobacco” and other “industr[ies]”; allegations that the Pinnacle Ultamet poses a risk of cancer, even though no plaintiff alleged such an injury and no science supports it; hearsay references to an employee’s unproven allegations of racist treatment at DePuy; and a suggestion that the failure of a metal-on-metal implant in another, nonparty individual led him to commit suicide. Not surprisingly, the jury, awash in this flood of prejudicial evidence, returned a verdict in excess of $500 million – including $360 million in exemplary damages.2 

3. The Third Trial (“Andrews”)
When the MDL court asked the parties to suggest a new batch of cases for a 

third bellwether trial, petitioners immediately moved to stay future trials pending 

2 

Appeals from that judgment and a subsequent order denying a new trial are pending. In both appeals, the five plaintiffs’ cases are consolidated under the lead case caption, Aoki v. DePuy Orthopaedics, Inc., No. 3:13-cv-01071-K (N.D. Tex.). (Appeal Nos. 16-11051 and 17- 10030.) 

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this Court’s resolution of their appeal of the Aoki verdict. (See Defs.’ Mot. to Stay Additional Trials Pending Resolution of Appeal of Second Bellwether Trial Cases, MDL Dkt. No. 657 (N.D. Tex. May 24, 2016).)3 

In their stay brief, petitioners made clear that “[a]lthough [they] previously waived Lexecon for purposes of selecting prior bellwether cases, they have never agreed to a blanket Lexecon waiver and do not waive their venue objections with respect to forthcoming trials.” (Id. at 1 n.1 (emphasis added).) The MDL court denied petitioners’ motion, finding that petitioners had globally waived Lexecon objections based on the Special Master’s reports discussed above. (Order Den. Defs.’ Mot. to Stay Additional Trials at 8-9, MDL Dkt. No. 665 (N.D. Tex. July 5, 2016).) 

The MDL court again consolidated cases for trial, this time of six California plaintiffs. Petitioners moved to dismiss all of the plaintiffs’ claims on personal- jurisdiction grounds, arguing that their claims arose in California and had no connection to Texas, where the plaintiffs had filed their claims pursuant to the MDL court’s direct-file order. The court denied the motion, concluding that “California is the relevant forum state” notwithstanding the fact that the claims were filed in Texas because the direct-filing order “does not contemplate treating 

3
position that the “bellwether” process was no longer serving its purpose. (See No. 16-10845, 

Petitioners also sought mandamus relief from this Court, in which they set forth their filed June 23, 2016, response requested July 1, 2016, denied Sept. 29, 2016.) 

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the cases differently based solely on the mechanism by which they reached this MDL.” (Order Den. Defs.’ Mot. to Dismiss for Lack of Personal Jurisdiction at 6, Andrews v. DePuy Orthopaedics, Inc., No. 3:15-cv-03484-K, Dkt. No. 81 (N.D. Tex. Sept. 20, 2016).)4 The MDL court thus concluded that it had the authority to “conduct bellwether trials” of these plaintiffs’ claims, relying on one case – In re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, MDL No. 2100, 2011 WL 1375011 (S.D. Ill. Apr. 12, 2011) – which concerns choice of law and does not even mention personal jurisdiction. (Id. at 7.) 

The ensuing trial was again rife with legal and evidentiary errors. Bombarded with improper prejudicial evidence and obviously confused by the large number of plaintiffs, the jury returned a verdict totaling more than $1 billion, featuring nearly identical awards for the six plaintiffs despite widely divergent underlying facts in each case.5 

4. The Upcoming Trial
Following the third trial, the MDL court stated that it would “consider 

submissions of the parties regarding bellwether candidates on cases applying New 

4 

Citations to “Andrews Dkt.” are to the district court docket number 3:15-cv-03484-K. The parties filed generally applicable submissions in all of the California plaintiffs’ dockets but generally cited only to the Andrews docket in referring to such submissions.
5 

Post-trial motions were recently resolved in the third trial, which is already pending on appeal under the Andrews caption. (Appeal No. 17-10022.) 

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York law.” (Order on Bellwether Trials at 1, MDL Dkt. No. 711 (N.D. Tex. Nov. 2, 2016).) 

Petitioners immediately “object[ed] to trying cases in this MDL proceeding that involve plaintiffs who are not residents of Texas, since the Court does not have personal jurisdiction over the defendants with respect to such cases, and venue is not proper for such cases in this Court pursuant to” Lexecon. (Defs.’ Resp. to Nov. 2, 2016 Order on Bellwether Trials at 1, MDL Dkt. No. 712 (N.D. Tex. Nov. 7, 2016).) Petitioners further stated that they “have not waived and do not agree to waive either personal jurisdiction or venue as to cases involving plaintiffs from New York for a fourth trial in this MDL proceeding, and to the extent that the Court concludes that defendants’ prior limited waivers extend to future trials, defendants withdraw any such waivers.” (Id.) 

Nevertheless, the MDL court issued an order on November 8, 2016, selecting ten cases involving New York plaintiffs for trial beginning September 5, 2017. (Order on Bellwether Trials at 1-2, MDL Dkt. No. 713 (N.D. Tex. Nov. 8, 2016).)6 The order did not acknowledge defendants’ objection. 

6 

The cases being worked up for trial in September that are at issue in this petition are: Alicea v. DePuy Orthopaedics, Inc., No. 3:15-cv-03489-K; Barzel v. DePuy Orthopaedics, Inc., No. 3:16-cv-01245-K; Buonaiuto v. DePuy Orthopaedics, Inc., No. 3:14-cv-02750-K; Heroth v. DePuy Orthopaedics, Inc., No. 3:12-cv-04647-K; Kirschner v. DePuy Orthopaedics, Inc., No. 3:16-cv-01526-K; Miura v. DePuy Orthopaedics, Inc., No. 3:13-cv-04119-K; Stevens v. DePuy Orthopaedics, Inc., No. 3:14-cv-01776-K; and Stevens v. DePuy Orthopaedics, Inc., No. 3:14- 02341-K. The Special Master informed the parties late last week that the ninth case – 

(cont’ d) 

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C. The Ruling At Issue 

Petitioners then moved to vacate the MDL court’s November 8 Order on the ground that the MDL court lacks personal jurisdiction to try the New York plaintiffs’ cases and that petitioners did not globally waive venue. (See Defs.’ Mem. in Supp. of Mot. to Vacate Nov. 8, 2016 Order on Bellwether Trials for Lack of Personal Jurisdiction, Alicea Dkt. No. 8-1 (N.D. Tex. Dec. 7, 2016).)7 On February 17, 2017, with the motion to vacate still pending, petitioners moved to dismiss the New York plaintiffs’ claims for lack of personal jurisdiction. (See Defs.’ Mem. in Supp. of Mot. to Dismiss for Lack of Personal Jurisdiction, Alicea Dkt. No. 15-1 (N.D. Tex. Feb. 17, 2017).) 

The MDL court denied both motions on June 28, 2017. (Order Den. Defs.’ Mot. to Vacate Nov. 8, 2016 Order on Bellwether Trials for Lack of Personal Jurisdiction & Mot. to Dismiss for Lack of Personal Jurisdiction (“Order”), Alicea Dkt. No. 23 (N.D. Tex. June 28, 2017) (App. 1-24).) It first addressed personal jurisdiction for pretrial purposes, to which petitioners had not objected. Specifically, the MDL court held that it had “jurisdiction over nonresident 

________________________
(cont’d from previous page)
Riedhammer v. DePuy Orthopaedics, Inc., No. 3:11-cv-02460-K – will not be tried in the Fall. The tenth case was voluntarily dismissed.
7 

Citations to “Alicea Dkt.” are to the district court docket number 3:15-cv-03489-K. The parties have been filing generally applicable submissions in all of the New York plaintiffs’ dockets but generally cite only to the Alicea docket in referring to such submissions. 

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defendants to the same extent that a court in the state in which the plaintiff was implanted with the Pinnacle Device would have jurisdiction,” again relying exclusively on Yaz. (Id. at 12, 14 (App. 12, 14).) The MDL court further emphasized that petitioners had consented to the entry of a direct-file order (id. at 14-15 (App. 14-15)), omitting mention of the fact that the direct-file order expressly acknowledges that it does not purport to resolve jurisdictional issues (see generally id.; CMO 1 ¶ 17). 

Turning to its personal jurisdiction for trial purposes, the MDL court did not resolve which forum’s contacts govern, concluding that “even if Texas were the relevant state to analyze this Court’s personal jurisdiction,” petitioners’ objections would nevertheless falter because they “globally waived any and all objections based on venue to trying any of the cases in the MDL in this Court as part of any bellwether trial” and that this waiver extended to personal jurisdiction. (See Order at 19-24 (App. 19-24).) Pointing to select portions of the Special Master’s reports and comments by petitioners’ counsel at the September 10, 2013 status conference discussed above, the court concluded that petitioners “clearly and unequivocally represented to this Court on multiple occasions that they waived any objections based on venue to trying any of the cases in the MDL in the Northern District of Texas.” (Id. at 5-8, 19-20 (App. 5-8, 19-20).) The court rejected petitioners’ repeated contentions that they had only agreed to waivers for the first two trials as 

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not “credibly asserted,” accusing them of “[r]etroactively” attempting to limit their waiver. (See id. at 5-9, 19-20 (App. 5-9, 19-20).) The MDL court specifically found that petitioners “did not limit their waiver to the first two bellwether trials or in any manner when they asserted it” and “did not raise any venue objections relating to the Aoki bellwether trial,” which “makes clear that they waived all objections based on venue” – apparently forever and for all cases – “regardless of whether cases were transferred under § 1407 or directly-filed.” (Id. at 20 (App. 20).) As a result, the MDL court now intends to try some or all of the New York plaintiffs’ claims starting on September 5, 2017.8 

This petition follows. 

REASONS WHY THE WRIT SHOULD ISSUE 

A writ of mandamus is warranted “when the trial court has exceeded its jurisdiction or has declined to exercise it, or when the trial court has so clearly and indisputably abused its discretion as to compel prompt intervention by the appellate court.” In re Chesson, 897 F.2d 156, 159 (5th Cir. 1990); accord In re Avantel, S.A., 343 F.3d 311, 317 (5th Cir. 2003). Mandamus review is an “extraordinary remedy” that is granted “‘not as a matter of right, but in the exercise 

8 

The court has yet to enter an order selecting a case to be tried, or consolidating any of the cases for a multi-plaintiff trial, although it has made clear that the trial will again involve multiple cases. In the last two trials, the MDL court made clear – as it has here – that it intended to try multiple cases, but issued its official consolidation order sua sponte and on the eve of trial. 

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of a sound judicial discretion.’” S. Pac. Transp. Co. v. San Antonio, 748 F.2d 266, 270 (5th Cir. 1984) (citation omitted); accord In re Occidental Petrol. Corp., 217 F.3d 293, 295 (5th Cir. 2000). 

“[T]he standard governing the availability of mandamus is not ‘never,’ but ‘hardly ever,’” In re Am. Airlines, Inc., 972 F.2d 605, 608 (5th Cir. 1992) (citation omitted); accord Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004); see also In re Reyes, 814 F.2d 168, 170 (5th Cir. 1987) (“When [a] writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course.”) (quoting United States v. Denson, 603 F.2d 1143, 1145 (5th Cir. 1979)). 

Parties requesting the issuance of a writ of mandamus must satisfy a two- pronged test in order to be entitled to such relief. In re Am. Airlines, 972 F.2d at 608. First, petitioners “‘carry the “burden of showing that [their] right to issuance of the writ is” clear and indisputable.’” Id. (alteration in original) (citation omitted). Notably, the fact that the issue presented is one “of first impression” to the Court of Appeals is no bar to mandamus review, especially where the issue would otherwise evade review and presents a purely legal question regarding the scope of a district court’s discretion. See In re Allstate Ins. Co., 8 F.3d 219, 220 (5th Cir. 1993). 

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Second, petitioners must show that the district court’s error is “not effectively reviewable on appeal.” In re Chevron, 109 F.3d at 1021 (Jones, J., specially concurring); see also Hebert v. Exxon Corp., 953 F.2d 936, 938 (5th Cir. 1992) (“‘[P]etitioners must show that they lack adequate alternative means to obtain the relief they seek.’”) (citation omitted). The Court also considers whether granting the writ is “‘appropriate under the circumstances.’” In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc) (quoting Cheney, 542 U.S. at 380-81). 

As set forth below, all of these conditions are satisfied here. 

I. THE MDL COURT CLEARLY ERRED IN CONCLUDING THAT IT CAN EXERCISE JURISDICTION OVER THE NEW YORK CASES FOR PURPOSES OF TRIAL. 

A. The MDL Court Cannot Exercise Another Court’s Personal Jurisdiction To Try Cases In The MDL Proceeding. 

“The primary focus of [the] personal jurisdiction inquiry is the defendant’s relationship to the forum State.” Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1779 (2017). “In a diversity suit, a federal court has personal jurisdiction over a nonresident defendant to the same extent that a state court in that forum has such jurisdiction.” Wilson v. Belin, 20 F.3d 644, 646 (5th Cir. 1994). Thus, a federal court in Texas presiding over a case premised on diversity jurisdiction must look to the nonresident defendant’s relevant contacts with Texas (if any) in deciding personal jurisdiction. 

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While the analysis is different for federal courts overseeing multidistrict litigation, that difference only applies to pretrial proceedings: 

Transfers under Section 1407 are simply not encumbered by considerations of in personam jurisdiction and venue. . . . A transfer under Section 1407 is, in essence, a change of venue for pretrial purposes. Following a transfer, the transferee judge has all the jurisdiction and powers over pretrial proceedings in the actions transferred to him that the transferor judge would have had in the absence of transfer. 

In re FMC Corp. Patent Litig., 422 F. Supp. 1163, 1165 (J.P.M.L. 1976) (emphases added). 

Nor can the existence of a direct-file order change this result. “As courts of limited jurisdiction, the federal courts possess no warrant to create jurisdictional law of their own”; indeed, the notion that “federal courts should determine their own personal jurisdiction is a proposition fundamentally at odds with our government of separated powers.” Point Landing, Inc. v. Omni Capital Int’l, Ltd., 795 F.2d 415, 423, 427 (5th Cir. 1986) (en banc) (per curiam) (citation omitted) (holding that a federal court’s personal jurisdiction must be established pursuant to “specific congressional authority”), aff’d sub nom. Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987), recognized as abrogated on other grounds, Chew v. Dietrich, 143 F.3d 24, 27 n.3 (2d Cir. 1998). 

Presumably for these reasons, although few MDL courts have considered the personal-jurisdiction implications of a direct-file order, see In re Heartland 

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Payment Sys., Inc. Customer Data Sec. Breach Litig., MDL No. 2046, 2011 WL 1232352, at *4 (S.D. Tex. Mar. 31, 2011) (noting the “unusual” circumstances of having to address these implications), the courts that have considered this question have applied the default rule that the relevant contacts are those with the forum in which the case was filed – not the plaintiff’s home state. See id. at *3-4; In re Chinese Manufactured Drywall Prods. Liab. Litig., 767 F. Supp. 2d 649, 656 n.2 (E.D. La. 2011) (“Here,” certain cases involving out-of-state plaintiffs “were filed directly into the Eastern District of Louisiana; thus, the Court is obliged to apply the law of the Fifth Circuit, which in turn looks to the law of the forum state, Louisiana, to determine whether the present [personal jurisdiction] motions should be granted.”). 

The MDL court has previously cited Yaz for the contrary proposition, but Yaz addresses a different issue: what choice-of-law principles should apply to direct-file cases. 2011 WL 1375011, at *5. The Yaz court concluded that direct- file cases should be treated “as if they were transferred from a judicial district sitting in the state where the case originated” for choice-of-law purposes. Id. at *6. It appears that the Yaz court’s intent was to avoid the “‘odd result’” of subjecting plaintiffs to the forum’s choice-of-law rules “‘simply because they took advantage of the direct filing procedure,’” which was intended to benefit “‘all parties and preserve[] judicial resources.’” Id. at *5 (quoting In re Bausch & Lomb Inc. 

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Contact Lens Solution Prods. Liab. Litig., MDL No. 1785, 2007 WL 3046682, at *3 (D.S.C. Oct. 11, 2007)). 

Yaz did not consider personal jurisdiction, however, and in that context, the MDL court’s approach here produces the “odd result.” As set forth above, it is clear that the MDL court would lack personal jurisdiction to try transferred cases because an MDL court inherits a transferor court’s personal jurisdiction only for “pretrial proceedings,” FMC Corp., 422 F. Supp. at 1165, at the conclusion of which the cases must be remanded, not tried, Lexecon, 523 U.S. at 28. Allowing a different result just because a case was direct-filed in the MDL court would produce the very type of anomaly that the Yaz court was trying to avoid and would also run contrary to Congress’s intent that MDL proceedings would encompass only pretrial matters. Lexecon, 523 U.S. at 28. 

Although the MDL court suggested that petitioners’ consent to its direct-file order should somehow affect the analysis (Order at 14 (App. 14) (purporting to distinguish Heartland on this basis)), the order to which the parties agreed expressly contemplates that direct-filed cases would be “transfer[red] . . . to a court of appropriate jurisdiction for trial” upon “completion of all pretrial proceedings.” (CMO 1 ¶ 17.) In other words, the parties agreed to achieve the exact outcome of 1407 transfer – and nothing more. 

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For all of these reasons, the MDL court cannot exercise personal jurisdiction over defendants for purposes of trial. 

B. The MDL Court Clearly Erred In Holding That Petitioners Globally And Permanently Waived Venue And Personal Jurisdiction Objections. 

Although the MDL court has sought to circumvent this jurisdictional roadblock by concluding that petitioners “[u]nequivocally” waived their personal jurisdiction and venue objections in perpetuity, that conclusion was erroneous. (See Order at 5-9, 19-20 (App. 5-9, 19-20).) The communications and filings discussed above show that defendants agreed to Lexecon waivers for the first and second bellwether trials only; that they have affirmatively asserted that they were not making any such waiver for the current cases; that they timely moved to dismiss plaintiffs’ claims for lack of personal jurisdiction in the district court; and that they have never expressed any consent to the trial scheduled for September. 

Although this Court has not addressed the showing needed to effect a waiver of personal jurisdiction and venue in the MDL context, other courts have. The leading case is Armstrong v. LaSalle Bank National Ass’n, 552 F.3d 613, 615 (7th Cir. 2009), which affirmed a district court’s conclusion that Lexecon waiver may be found only where a party “deliberately relinquished a known right,” and the waiver is “clear and unambiguous.” Id. at 616, 617-19. In Armstrong, the Seventh Circuit emphasized an MDL court’s statutory mandate under § 1407 to preside 

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over pretrial proceedings rather than trial, suggesting that this statutory directive “if anything[,] cautions for a stronger showing of waiver” than in other contexts. Id. at 616. And the Seventh Circuit further made clear that because “the presumption is that the case will be remanded at the close of pretrial proceedings,” there is “no need for [the parties] to assert their intention to seek such remand in order for the right to exist.” Id. Turning to the facts, the Seventh Circuit affirmed the district court’s rejection of an argument that the plaintiffs had waived their right to remand under § 1407, even though the plaintiffs had participated in extensive pretrial proceedings and even agreed to “specific trial dates.” Id. at 618. As the court explained, a party’s “acquiescence in the establishment of such dates” may serve purposes unrelated to a commitment to try the case in the MDL venue, such as “facilitat[ing] the conclusion of the pretrial stage.” Id. 

This Court has applied similarly strict requirements to allegations that venue rights have been waived in other contexts. In Northside Iron & Metal Co. v. Dobson & Johnson, Inc., for example, the Court held that a national bank waives its rights under the bank venue statute (12 U.S.C. § 94) only by “express declaration,” failure “to assert the privilege” when sued in the wrong venue, or by “conduct inconsistent with the assertion of the privilege,” and that in any case waiver can be found only where there is “a voluntary and intentional relinquishment or abandonment of the privilege.” 480 F.2d 798, 800 (5th Cir. 

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1973) (citation omitted). Similarly, in considering whether ambiguous contractual language concerning venue selection constituted waiver of a party’s right to remove an action to federal court, the Court has conducted a searching inquiry of the purported agreement to waive, explaining that, where the alleged waiver is “susceptible to more than one reasonable interpretation,” the ambiguity “must be construed against the . . . drafter” because ambiguity by definition precludes a finding of a “‘clear and unambiguous’ waiver.” City of New Orleans v. Municipal Admin. Servs., Inc., 376 F.3d 501, 505-06 (5th Cir. 2004). 

Under these guiding principles, the MDL court’s finding of global waiver as to all 9,300 cases now pending and any cases filed in the future is plainly unsustainable. As summarized above, petitioners’ initial waiver was made in the context of identifying four candidates for an “initial bellwether” process, with no suggestion that any waiver would extend to other cases or otherwise be construed as permanent, universal, or irrevocable. 

After the first trial, the “initial bellwether” process was discarded and the MDL court called for a fresh slate of candidates. The Special Master again sought the parties’ waiver – a superfluous exercise if the initial waiver had truly been global, as contended by the MDL court – and petitioners expressly consented only to waive venue for the “next round of bellwether cases.” (Email between Seth Roberts and Hon. James Stanton, Dec. 5-8, 2014 (App. 25-28).) Petitioners agreed 

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to no further waivers. This silence as to future waiver was sufficient to preserve their objections to venue and personal jurisdiction since “the presumption is” that MDL courts do not try cases. Armstrong, 552 F.3d at 616. But petitioners did not rest on silence, instead expressly objecting to both the third trial and the upcoming September trial. 

The MDL court’s contrary conclusion misreads the record and erroneously construes manufactured ambiguities against petitioners. As a threshold matter, the MDL court concluded that petitioners had agreed to an extremely broad waiver, one that permits the MDL court to try the claims of non-Texas plaintiffs who had not even filed their cases at the time petitioners agreed to limited Lexecon waivers. In fact, seven of the eight plaintiffs at issue in this petition commenced their actions after the Special Master’s report of petitioners’ waiver as to the initial bellwether process in January 2013.9 Given petitioners’ fundamental right to defend trials in courts of proper jurisdiction and venue, a finding of such broad waiver should rest only on the clearest evidence. 

Instead, it rests on the thinnest of grounds: (1) two reports by the Special Master noting that petitioners had agreed to a Lexecon waiver, which the MDL 

9 

As the cases’ docket numbers make clear, six of the eight cases were filed in 2014 or later: Alicea (2015); Barzel (2016); Buonaiuto (2014); Kirschner (2016); Stevens (2014); and Stevens (2014). Miura, the seventh case filed after the Special Master’s report, was filed in October 2013. See Compl., Miura v. DePuy Orthopaedics, Inc., No. 3:13-cv-04119-K, Dkt. No. 1 (N.D. Tex. filed Oct. 11, 2013.) 

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court asserts petitioners “did not limit . . . in any manner”; (2) statements by petitioners’ counsel at the September 2013 status conference clarifying that petitioners were not raising a Lexecon objection as to the candidates then under consideration for the first bellwether trial; and (3) the fact that petitioners did not raise a Lexecon objection prior to the second bellwether trial. (Order at 4-6, 20 (App. 4-6, 20).) None of these things establishes global waiver. 

First, the record bars any conclusion that the Special Master’s reports demonstrate an intent to waive venue for all future trials. As just discussed, the first report arose in connection with the “initial bellwether” cases called for under CMO 8. And while the Special Master’s second report was not expressly limited to a selection of cases for a second trial, the context – including petitioners’ express statement to the Special Master that waiver was for the “next round of bellwether cases” – makes clear that no global waiver was intended by petitioners. 

Second, as already discussed, petitioners’ counsel’s statement at the September 2013 status conference merely reaffirmed the waiver that the Special Master had previously reported in connection with selections for the “initial bellwether” process – a process that the MDL court discarded after the first trial. Nothing in the statement indicates that any broader waiver was intended – much less a perpetual waiver that would come to embrace thousands of cases filed after it was made. 

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Third, the fact that petitioners did not raise an affirmative Lexecon objection before the second bellwether trial is irrelevant. The waiver for the second trial was expressly limited to the “next round of bellwether cases”; there was no need for petitioners to expressly reaffirm their venue rights in future trials because the continuing “presumption” is that cases will not be tried in an MDL proceeding. Armstrong, 552 F.3d at 616. And in light of petitioners’ waiver for the second trial, it is nonsensical to fault them for not reversing course and interposing a Lexecon objection before that trial – especially since the second trial involved the claims of Texas plaintiffs whose claims were subject to personal jurisdiction in the MDL court. 

For all of these reasons, the MDL court clearly erred in concluding that petitioners had clearly and unambiguously manifested an intent to waive venue (and, by extension, personal jurisdiction) in more than 9,300 cases for any future trials. 

II. THE MDL COURT’S DECISIONS ARE EFFECTIVELY “IRREMEDIABLE” THROUGH REGULAR APPEAL, AND MANDAMUS RELIEF IS ESPECIALLY APPROPRIATE IN LIGHT OF THE BROAD IMPORTANCE OF THE ISSUES PRESENTED. 

Mandamus should also issue because the MDL court’s conclusion that it may try the New York plaintiffs’ cases notwithstanding petitioners’ personal- jurisdiction objection will cause petitioners irremediable injury and implicates issues of broad importance – not only to all 9,300-plus cases in this MDL 

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proceeding, but to all MDL proceedings in this Circuit involving the proposed trial of bellwether cases. 

First, end-of-case appeal is not an adequate remedy because the cost of having to defend these trials for the opportunity to vindicate personal-jurisdiction rights that are clear at the outset is unjustifiable.10 Where these or other substantial harms are presented by a clearly improper exercise of personal jurisdiction, other courts of appeals have granted writs of mandamus. See Abelesz v. OTP Bank, 692 F.3d 638, 653 (7th Cir. 2012) (granting mandamus and noting, among other things, that allowing the case to go forward might put “intense pressure to settle” on the defendants, given their possible damages exposure); cf. also, e.g., In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 33 (2d Cir. 2014) (granting mandamus where the “district court’s jurisdictional analysis is clearly erroneous” and allowing the suit to go forward would force the defendant to produce “sensitive documents”); In re Impact Absorbent Techs., Inc., 106 F.3d 400, 1996 WL 765327, at *3 (6th Cir. 1996) (unpublished opinion) (granting writ even though “uncorrectable damage may not result if petitioners are forced to wait for a remedy on direct appeal” because “the clearly erroneous nature of the district court’s order calls for a more immediate remedy”); Sunbelt Corp. v. Noble, Denton 

10
court, and jurors; each of the prior three trials lasted between eight and nine weeks. 

Trials in the MDL proceeding require significant investments by the parties, the MDL 

27 

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& Assocs., Inc., 5 F.3d 28, 33 (3d Cir. 1993) (granting mandamus where district court lacked authority to transfer case under 28 U.S.C. § 1404(a) because it did not have personal jurisdiction over defendant). 

Second, immediate review of the MDL court’s erroneous rulings is “appropriate in this circumstance” because petitioners’ right to relief is clear and the petition presents new and important issues that “‘have an importance beyond the immediate case.’” In re Ford Motor Co., 591 F.3d 406, 416 (5th Cir. 2009) (quoting Volkswagen, 545 F.3d at 319). 

As this Court has recognized, review is appropriate where an order “turns on legal questions appropriate for appellate review,” see, e.g., In re Burlington N., Inc., 822 F.2d 518, 522-23 (5th Cir. 1987), and the district court “reached a patently erroneous result,” Volkswagen, 545 F.3d at 319. The MDL court’s conclusion that it has personal jurisdiction based on petitioners’ alleged global waiver of venue objections fits the bill because it is both “patently erroneous” and presents a legal question going to the heart of an MDL court’s authority. 

Moreover, the immediate implications of the MDL court’s conclusions are unusually broad. This Court has held that mandamus is appropriate when the petition presents an opportunity “to ‘settle new and important problems,’” resolution of which “will forestall future error in trial courts, eliminate uncertainty and add importantly to the efficient administration of justice.’” In re E.E.O.C., 709 

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F.2d 392, 394 (5th Cir. 1983) (citing Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964)). Indeed, the “very purpose” of exercising the Court’s “‘expository and supervisory functions’ . . . is to meet ‘the compelling need to settle a new issue so that it can become only an ordinary issue.’” Id. at 395 (citation omitted). 

That is the case here. The MDL court’s conclusions apply not just to these eight cases but, presumably, in the vast majority of the more than 9,300 cases pending in the MDL proceeding – as well as any others filed in the future. Its reasoning also has implications for countless others cases in current and future MDL proceedings in this Circuit. Left unchecked, these rulings would encourage other MDL courts to stretch their authority to try claims, regardless of the relevant contacts with the forum or petitioners’ consent. The sheer impact of the MDL court’s rulings thus warrants immediate review. And the issues presented, though clear, are also novel, and afford an important opportunity for this Court to clarify the law of the Circuit on matters that will recur frequently in MDL litigation. See, e.g., Ford, 591 F.3d at 416-17 (granting mandamus where there were “at least two other similar cases pending in the MDL court that were initially filed in Texas” and “other suits may be filed in our district courts” raising the same questions); Chevron, 109 F.3d at 1020 (granting mandamus where decision below could affect 3,000 cases). 

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For all of these reasons, immediate review of the MDL court’s personal- jurisdiction and waiver rulings is particularly appropriate. 

CONCLUSION 

For the foregoing reasons, petitioners respectfully request that this Court issue a writ of mandamus prohibiting the Honorable Ed Kinkeade, Judge of the United States District Court for the Northern District of Texas, from trying plaintiffs’ cases because he lacks personal jurisdiction over defendants for trial. Petitioners further request a ruling on the petition in advance of September 5, 2017, the date trial is scheduled to commence. 

Respectfully submitted, 

/s/ John H. Beisner 

John H. Beisner
Stephen J. Harburg
Jessica Davidson Miller
Geoffrey M. Wyatt
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1440 New York Avenue, N.W.
Washington, D.C. 20005
(202) 371-7000 

Michael V. Powell
LOCKE LORD LLP
2200 Ross Avenue, Suite 2800 Dallas, Texas 75201
(214) 740-8453 

Attorneys for Petitioners 

30 

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CERTIFICATE OF COMPLIANCE 

1. This brief complies with the type-volume limitations of Federal Rule of Appellate Procedure 21(d)(1) because this brief contains 7,142 words. 

2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2010 in 14-point Times New Roman font. 

Date: July 21, 2017 s/John H. Beisner JOHN H. BEISNER 

Case: 17-10812 Document: 00514088377 Page: 42 Date Filed: 07/25/2017 

CERTIFICATE OF SERVICE 

I certify that the Petition for a Writ of Mandamus was filed with the Court electronically on July 21, 2017, and an electronic copy of the brief were served on the individuals below via electronic mail on the same date. 

The Honorable James Edward Kinkeade United States District Judge
Northern District of Texas
1100 Commerce St # 1625, Dallas, TX 75242 

W. Mark Lanier
Michael R. Akselrud
Paul R. Cordella
The Lanier Law Firm, PC
6810 FM 1960 Rd W
Houston, TX 77069-3804
Telephone: (713) 659-5200
Fax: (713) 659-2204
E-mail: wml@lanierlawfirm.com
E-mail: michael.akselrud@lanierlawfirm.com E-mail: prc@lanierlawfirm.com 

Larry Boyd
Wayne Fisher
Justin Presnal
Fisher, Boyd, Brown & Huguenard, LLP 2777 Allen Parkway, Suite 1400 Houston, Texas 77019 

Telephone: (713) 400-4000
Fax: (713) 400-4050
E-mail: lboyd@fisherboyd.com E-mail: wfisher@fisherboyd.com E-mail: justinp@fisherboyd.com 

Case: 17-10812 Document: 00514088377 Page: 43 Date Filed: 07/25/2017 

Richard J. Arsenault
Neblett, Beard & Arsenault
2220 Bonaventure Court
P.O. Box 1190
Alexandria, Louisiana 71301 Telephone: (800) 256-1050
Fax: (318) 561-2591
E-mail: rarsenault@nbalawfirm.com 

Jayne Conroy
Laura L. Fitzpatrick
Simmons Hanly Conroy
112 Madison Avenue
New York, NY 10016
Telephone: (212) 784-6402
Fax: (212) 213-5949
E-mail: jconroy@simmonsfirm.com E-mail: lsingletary@simmonsfirm.com 

Thomas J. Preuss
Wagstaff & Cartmell, LLP 4740 Grand Avenue
Suite 300
Kansas City, MO 64112 Telephone: (816) 701-1100 Fax: (816) 531-2372 E-mail: tjpreuss@wcllp.com 

Rosemarie Riddel Bogdan
Martin, Harding & Mazzotti, L.L.P.
P.O. Box 15141
Albany, NY 12212-5141
Telephone: (518) 529-1010
E-mail: Rosemarie.Bogdan@1800LAW1010.com 

Case: 17-10812 

Document: 00514088377 

Page: 44 

Date Filed: 07/25/2017 

Thomas K. Brown
The Brown Law Firm
Three Riverway
Suite 1775
Houston, TX 77056 Telephone: (713) 400-4020 Fax: (713) 400-4025 E-mail: tom@brownfirm.net 

Thomas R. Anapol
Anapol Weiss
One Logan Square
130 N. 18th St. Ste. 1600 Philadelphia, PA 19103 Telephone: (215) 735-1130 E-mail: tanapol@anapolweiss.com 

Seth Katz
Burg Simpson Eldredge Hersh & Jardine, P.C. 40 Inverness Drive East
Englewood, CO 80112
Telephone: (303) 792-5595
Email: skatz@burgsimpson.com 

http://www.ca5.uscourts.gov/opinions/pub/17/17-10812-CV0.pdf

Case: 17-10812 Document: 00514139512 Page: 1 Date Filed: 08/31/2017 

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 

No. 17-10812 

United States Court of Appeals Fifth Circuit 

FILED 

August 31, 2017 

Lyle W. Cayce Clerk 

In re: 

DEPUY ORTHOPAEDICS, INCORPORATED;
DEPUY PRODUCTS, INCORPORATED;
DEPUY SYNTHES, INCORPORATED;
JOHNSON & JOHNSON INTERNATIONAL; JOHNSON & JOHNSON SERVICES, INCORPORATED; JOHNSON & JOHNSON, 

Petitioners. 

Petition for Writ of Mandamus to the United States District Court for the Northern District of Texas 

Before JONES, SMITH, and COSTA, Circuit Judges. 

JERRY E. SMITH, Circuit Judge: 

This petition for writ of mandamus arises from a multidistrict litigation (“MDL”) proceeding involving more than 9,300 plaintiffs.1 Those plaintiffs have brought product-liability claims against petitioners for designing, 

1 See MDL Dkt. No. 772. Citations to “MDL Dkt.” are to In re: DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prods. Liab. Litig., N.D. Tex. Case No. 3:11-md-02244-K. 

Case: 17-10812 Document: 00514139512 Page: 2 Date Filed: 08/31/2017 

No. 17-10812
manufacturing, and distributing an allegedly defective hip-implant device, the Pinnacle Acetabular Cup System (the “Pinnacle Device”).2 The MDL court denied petitioners’ motions to vacate an order and dismiss certain cases for 

lack of personal jurisdiction.3 

We have reviewed the petition for writ of mandamus, the opposition thereto, petitioners’ reply in support of the writ, the exhibits attached to those submissions, and the applicable law. We also have heard one hour of oral argu- ment on the petition. Despite finding serious error, a majority of this panel denies the writ that petitioners seek to prohibit the district court from pro- ceeding to trial on plaintiffs’ cases.4 A different majority holds (1) that so- called Lexecon5 objections were not waived and that the district court abused its discretion in finding waiver; (2) that the petitioners have shown the required clear and indisputable right to a writ of mandamus; and (3) that the petitioners have established that a writ of mandamus is appropriate under the 

2 See Petitioners’ Appendix (“Petitioners’ App.”) 2. 

3 Id. at 24. 

4 In anticipation of any suggestion that a court of appeals exceeds its proper role in ruling on pending issues but nonetheless denying mandamus, we note that this court has routinely held, sometimes in published opinions, that a district court erred, despite stopping short of issuing a writ of mandamus. E.g., In re Dean, 527 F.3d 391 (5th Cir. 2008) (per curiam) (holding that district court had “violated” a federal statute); In re United States, No. 07-40629, 2007 U.S. App. LEXIS 30793 (5th Cir. July 19, 2007) (per curiam) (holding that district court “abused its discretion”); In re U.S. Dep’t of Homeland Sec., 459 F.3d 565 (5th Cir. 2006) (holding that district court “erred in declaring that no law enforcement privilege exists”); In re Kleberg Cty., 86 F. App’x 29 (5th Cir. 2004) (holding that district court “impermissibly violated the County’s privilege not to reveal its confidential informants” and ran “afoul of controlling law”); In re Avantel, S.A., 343 F.3d 311 (5th Cir. 2003) (holding that district court erred in compelling production of allegedly privileged documents); In re Stone, 986 F.2d 898 (5th Cir. 1993) (per curiam) (holding that district court abused its discretion in ordering who must be present at settlement conference); In re Office of Thrift Supervision, 948 F.2d 910 (5th Cir. 1991) (holding that district court erred as a matter of law in attempting to transfer the proceeding, but noting that petitioner “has not made an adequate showing . . . of harm that cannot be undone if the order is reversed on appeal”). 

5 See Lexecon Inc. v, Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). 2 

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circumstances. But in regard to the ultimate result, a majority concludes that the petitioners have not shown that they have no other adequate means to attain the relief they seek. A majority requests the district court to vacate its ruling on waiver and to withdraw its order for a trial beginning September 5, 

2017. 

district Litigation ordered the transfer of all actions involving the Pinnacle Device into the MDL court in the Northern District of Texas.6 Later, the MDL court issued an order allowing Pinnacle Device plaintiffs to file directly in that district.7 

An MDL court can conduct pretrial proceedings but cannot try a case that it would not be able to try without its MDL status. Federal law limits an MDL court’s jurisdiction over a transferred case to pretrial proceedings and provides that once those are completed, the MDL court must remand the trans- ferred case to the district from which it was transferred.8 Cases that are dir- ectly filed in an MDL court are treated “as if they were transferred from a judicial district sitting in the state where the case originated.”9 An MDL court can try a case where venue is improper if the parties waive their objections. Such waivers are known as “Lexecon waivers.” 

In August 2012, the MDL court entered Case Management Order 8 (“CMO 8”) directing the parties to “submit . . . a stipulated protocol for selection 

6 Petitioners’ Appendix (“Petitioners’ App.”) 3. 

7 Id. 

8 See 28 U.S.C. § 1407(a). 

9 See In re Yasmin & Yaz (Drospirenone) Mktg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF, 2011 WL 1375011, at *6 (S.D. Ill. Apr. 12, 2011). 

I.
The MDL proceeding began in 2011, when the Judicial Panel on Multi- 

3 

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No. 17-10812
and conducting of bellwether trials in this MDL proceeding” and then “file their recommended selection of 4−6 cases to be included in an initial bellwether trial 

process.”10 Bellwether trials are meant to 

produce a sufficient number of representative verdicts and settlements to enable the parties and the court to determine the nature and strength of the claims, whether they can be fairly developed and liti- gated on a group basis, and what range of values the cases may have if resolution is attempted on a group basis.[11] 

The parties worked with the court and the special master to develop a protocol for bellwether trials.12 

The special master produced a report that included a proposal, agreed to by the parties, to try four cases from a pool of eight.13 The report stated that “Defendants’ Lead Counsel have already agreed that they will not raise a venue objection (i.e., a Lexecon objection) to any cases in the MDL proceeding being tried in the Northern District of Texas.”14 

The process became contentious when plaintiffs proposed to consolidate multiple cases for each bellwether trial. Petitioners objected, claiming that they did “not agree to waive their Lexecon objections for a prejudicial, multi- plaintiff trial.”15 A few days later, petitioners clarified that “we have waived the [Lexecon] restriction on . . . these cases, consistent with the report that the special master gave to the court earlier.”16 

10 Petitioners’ App. 4.
11 Manual for Complex Litigation (Fourth) (2004) § 22.315; see also In re Chevron 

U.S.A., Inc., 109 F.3d 1016, 1019 (5th Cir. 1997). 12 See Petitioners’ App. 4. 

13 Id. 14 Id. 

15 MDL Dkt. No. 341, p. 5. 16 MDL Dkt. No. 344, p. 5. 

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The first trial, involving a single case transferred from the District of 

Montana, was held in September and October 2014.17 The jury found for petitioners.18 

After the first trial, the parties and the court proceeded to select a new set of bellwether cases.19 The special master noted again that “Defendants have agreed they will not raise a venue objection (i.e., a Lexecon objection) to any cases in the MDL being tried in the Northern District of Texas.”20 

The court selected five cases, all directly filed by Texas plaintiffs, and ordered that they be tried together in a consolidated second bellwether trial.21 Defendants objected to the consolidation but not on grounds of venue or per- sonal jurisdiction.22 The trial was held in early 2016.23 The jury returned a $502 million verdict, which the court reduced.24 Petitioners appealed.25 

Petitioners moved to stay future bellwether trials pending the appeal. In a footnote to their brief urging a stay, they claimed that “[a]lthough [they] previously waived Lexecon for purposes of selecting prior bellwether cases, they have never agreed to a blanket Lexecon waiver and do not waive their venue objections with respect to forthcoming trials.”26 The court denied a stay and stated that petitioners had already waived their venue objections to trying 

17 Petitioners’ App. 6. 18 Id.
19 Id.
20 Id. 

21 Id. at 6–7. 22 Id. at 7.
23 Id.
24 Id. 

25 Id.
26 MDL Dkt. No. 657-1, p. 2 n.1. 

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cases in the MDL court.27 

No. 17-10812 

In June 2016, the MDL court selected six cases, all directly filed by Cali- fornia plaintiffs, for a third bellwether trial.28 Petitioners unsuccessfully moved to dismiss for want of personal jurisdiction and reiterated their claim that they had waived their venue objections only with respect to the first two bellwether trials.29 The trial was held in September and October 2016, and the jury returned a $1.04 billion verdict, which the court reduced.30 Petitioners appealed.31 

In November 2016, the MDL court issued an order selecting ten cases with New York plaintiffs for a fourth bellwether trial.32 Petitioners moved to vacate the order and dismiss the claims for lack of personal jurisdiction, reiter- ating their assertions about waiver.33 In June 2017, the court denied both motions, finding that petitioners had “clearly and unequivocally represented to this Court on multiple occasions that they waived any objections based on venue to trying any of the cases in the MDL in the Northern District of Texas.”34 The MDL court intends to try some of the New York cases in a fourth bellwether trial scheduled to begin on September 5, 2017.35 Petitioners natur- ally ask this court to rule before then. 

27 See MDL Dkt. No. 665, pp. 8–9, 11. 28 See Petitioners’ App. 8.
29 Id.
30 Id. at 9. 

31 See Fifth Cir. No. 17-10828. 32 See Petitioners’ App. 9.
33 Id. at 9–10.
34 Id. at 19–20, 24. 

35 On August 25, 2017, the day after this panel heard oral argument on the mandamus petition, the district court entered a two-paragraph order stating, in relevant part, as follows: 

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No. 17-10812 II. 

A writ of mandamus is “a drastic and extraordinary remedy reserved for really extraordinary causes.”36 It “is not a substitute for an appeal.”37 Only a showing of “exceptional circumstances amounting to a judicial usurpation of power” or “a clear abuse of discretion” will justify granting a mandamus petition.38 Mandamus is appropriate where (1) the petitioner has shown a “clear and indisputable” right to the writ; (2) the court is “satisfied that the writ is appropriate under the circumstances”; and (3) the petitioner has “no other adequate means to attain the relief [it] desires.39 

A.
First, petitioners must show that they have a “clear and indisputable” 

right to mandamus relief.40 That “require[s] more than showing that the court misinterpreted the law, misapplied it to the facts, or otherwise engaged in an abuse of discretion.”41 Where a matter is committed to a district court’s discre- tion, “we review only for clear abuses of discretion that produce patently erroneous results.”42 Some courts have decided that waiver determinations 

[T]he Court notifies the parties that the following cases, which were selected to be prepared for jury trial beginning September 5, 2017 . . ., will be the final bell- wether cases tried in the Dallas Division of the Northern District of Texas pursuant to Plaintiffs’ and Defendants’ Lexecon waivers: [listing eight cases from New York]. 

36 Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (internal quotation marks omitted). 

37 In re Chesson, 897 F.2d 156, 159 (5th Cir. 1990) (per curiam). 

38 Cheney, 542 U.S. at 380 (citations and internal quotation marks omitted). 

39 In re Lloyd’s Register N. Am., Inc., 780 F.3d 283, 288 (5th Cir.) (quoting Cheney, 542 U.S. at 380–81), cert. denied, 136 S. Ct. 64 (2015). 

40 Cheney, 542 U.S. at 381 (quoting Kerr, 426 U.S. at 403). 41 Lloyd’s Register, 780 F.3d at 290. 

42 Volkswagen, 545 F.3d at 312. 

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No. 17-10812 are committed to a district court’s discretion.43 

Section 1407 provides that transferred actions “shall be remanded . . . at or before the conclusion of such pretrial proceedings.”44 This mandatory lan- guage creates a powerful presumption in favor of remand, one that cannot easily be overcome.45 The result is a statutory right to remand following an MDL proceeding, analogous to the statutory right to removal under 28 U.S.C. § 1441. A party cannot waive its removal rights through a forum-selection clause unless the waiver is “clear and unambiguous.”46 Likewise, we hold that a Lexecon waiver must be “clear and unambiguous.”47 

Petitioners’ waivers all included, or referred to, limiting language. The MDL court’s notion,48 echoed by plaintiffs, that petitioners are trying to limit their waivers retroactively, is not borne out by the facts. We hold that peti- tioners limited their venue waivers to the first two bellwether trials and that the MDL court erred by declaring that they had globally and permanently waived their objections to venue and personal jurisdiction. That was grave error: At most, petitioners’ waivers included ambiguous language that did not 

43 See, e.g., Lechoslaw v. Bank of Am., N.A., 618 F.3d 49, 55–56 (1st Cir. 2010) (“A determination as to ‘waiver [of personal jurisdiction is] within the discretion of the trial court, consistent with its broad duties in managing the conduct of cases pending before it.’”) (quoting United States v. Ziegler Bolt & Parts Co., 111 F.3d 878, 882 (Fed. Cir. 1997)). We need not decide that standard-of-review question here, because a majority concludes that the abuse- of-discretion is met anyway. 

44 28 U.S.C. § 1407 (emphasis added).
45 See Lexecon, 523 U.S. at 35.
46 City of New Orleans v. Mun. Admin. Servs., Inc., 376 F.3d 501, 505–06 (5th Cir. 

2004). 

47 This is an issue of first impression. The only other circuit to have addressed the question, the Seventh Circuit, also held that a strong showing is needed to effect a Lexecon waiver. See Armstrong v. LaSalle Bank Nat’l Ass’n, 552 F.3d 613, 615–19 (7th Cir. 2009) (finding that the plaintiffs had not waived their right to remand under § 1407 by partici- pating in pretrial proceedings and agreeing to specific trial dates). 

48 See Petitioners’ App. 7. 

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indicate a clear intent to waive all Lexecon objections to trials before the MDL 

court. 

Plaintiffs highlight the broad language in the special master’s first report, which states that petitioners’ lead counsel agreed not to raise a venue objection “to any cases in the MDL proceeding being tried in the [Forum].”49 But that report was issued pursuant to CMO 8,50 which refers to “an initial bellwether trial process” and focuses on the first bellwether trial.51 Given that context, that waiver is unequivocally limited to the first bellwether trial. 

Plaintiffs point to the status conference in September 2013 in which petitioners appeared to walk back an earlier claim that they did “not agree to waive their Lexecon objections for a prejudicial, multi-plaintiff trial.” But dur- ing the status conference, petitioners’ counsel noted that “we have waived the [Lexecon] restriction on these—these cases, consistent with the report that the special master gave to the court earlier.”52 The part of the sentence after the em-dash limits the waiver to “these cases,” an apparent reference to the first batch of bellwether cases. One of those cases was the subject of the first bell- wether trial; the MDL court removed the others from its trial pool after that trial.53 

In December 2014, after the first bellwether trial, the special master asked petitioners’ counsel to “confirm DePuy is willing to waive Lexecon for all MDL cases to be tried in Dallas.”54 Petitioners’ counsel responded “Confirmed. 

49 Respondents’ Appendix 9. 50 Id.
51 MDL Dkt. No. 190, p. 2. 52 MDL Dkt. No. 344, p. 5. 53 See Petitioners’ App. 6. 

54 Id. at 25. 

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In order to allow the Court to select the next round of bellwether cases from a broader pool of cases that can be tried in Dallas, defendants have agreed to waive Lexecon objections to cases in the MDL proceeding being tried there.”55 Plaintiffs portray that email as an unequivocal Lexecon waiver. But, again, note the limiting language: “the next round of bellwether cases.” The special master’s subsequent report, in which he declared that petitioners had effected a Lexecon waiver for “any cases in the MDL being tried in the [Forum],”56 must be read in light of those earlier remarks. Accordingly, there is no “clear and unequivocal” waiver; a plain reading is much to the contrary. We hold that the MDL court clearly abused any discretion it might have had and, in doing so, 

reached a “patently erroneous” result. 

B.
Second, granting a mandamus petition must be “appropriate under the 

circumstances.”57 Mandamus relief is “particularly appropriate” where an issue’s importance extends “beyond the immediate case.”58 Petitioners note that the personal-jurisdiction issue has implications beyond the fourth bell- wether trial because of the large number of cases pending in the Pinnacle Device MDL proceeding and because the district court’s reasoning may be adopted by future MDL courts. At oral argument, plaintiffs’ counsel, when questioned, conceded that he claims a “global waiver” that extends to over nine thousand cases. We hold that mandamus relief would be “appropriate under the circumstances” if all three standards were satisfied. 

55 Id.
56 MDL Dkt. No. 490, p. 1.
57 Cheney, 542 U.S. at 381.
58 Volkswagen, 545 F.3d at 319. 

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No. 17-10812 C. 

And finally, petitioners must show that they have “no other adequate means” to obtain relief.59 That is a high bar: The appeals process provides an adequate remedy in almost all cases, even where defendants face the prospect of an expensive trial.60 Mandamus is appropriate only where an error is truly “irremediable on ordinary appeal.”61 For example, after a Vermont district court found that it had personal jurisdiction over a New York Catholic diocese in a sex-abuse case, the Second Circuit granted mandamus, citing “the irrepar- able harm [that would be] caused by a needless foray into prior abuse investi- gations within the Diocese, exposing victims and their families to grueling [and unnecessary] inquiries.”62 In Abelesz v. OTP Bank, 692 F.3d 638, 661 (7th Cir. 2012), the court granted mandamus to halt a $75 billion lawsuit against two Hungarian banks, citing, among other factors, “the inherent involvement with U.S. foreign policy.” 

Petitioners claim that appeal is not an adequate remedy because the cost of having to defend more bellwether trials is “unjustifiable” given the strength of their personal-jurisdiction claims. It is no doubt true that petitioners will incur substantial costs if the fourth bellwether trial is allowed to proceed. At oral argument, the parties represented that each of the previous three bell- wether trials lasted several weeks. But for appeal to be an inadequate remedy, 

59 Cheney, 542 U.S. at 380 (quoting Kerr v. U.S. Dist. Court for N.D. Cal., 426 U.S. 394, 403 (1976)). 

60 Lloyd’s Register, 780 F.3d at 288 (“Even though the defendant may be required to engage in a costly and difficult trial and expend considerable resources before the court enters an appealable judgment, those unrecoverable litigation costs are not enough to make this means of obtaining relief inadequate.”). 

61 In re Avantel, S.A., 343 F.3d 311, 317 (5th Cir. 2003). 

62 In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d 30, 41 (2d Cir. 2014) 

(per curiam). 

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there must be “some obstacle to relief beyond litigation costs that renders obtaining relief not just expensive but effectively unobtainable.”63 Nor is the “hardship [that] may result from delay”—such as the risk of substantial set- 

tlement pressure—grounds for granting a mandamus petition.64 

This case is distinguishable from Lloyd’s Register and from In re Volks- wagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) (en banc), in which we granted mandamus petitions overturning venue rulings. In both, appeal was an inadequate remedy because petitioners (1) would have to overcome a high standard of review on appeal and (2) would face irreversible, non-monetary harm if the case went forward.65 Those factors are not present here. This court reviews a district court’s exercise of personal jurisdiction de novo,66 so the stan- dard of review on appeal is not an issue, and petitioners would not face ir- reversible, non-monetary harm if the fourth bellwether trial were held. 

We hold that petitioners have the usual and adequate remedy of ordinary appeal. In fact, they have taken advantage of that remedy by appealing the judgment in the third bellwether trial on personal-jurisdiction grounds. That appeal was filed in July 2017 and will be decided in due time. 

III.
Petitioners have met two of the three parts of the Cheney test. But the 

requirement that a party have “no other adequate means” of obtaining relief is not satisfied. Accordingly, a majority of this panel concludes that the petition for writ of mandamus is DENIED. 

63 Lloyd’s Register, 780 F.3d at 289.
64 Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964).
65 Lloyd’s Register, 780 F.3d at 289; Volkswagen, 545 F.3d at 318–19. 66 See Jackson v. FIE Corp., 302 F.3d 515, 521 (5th Cir. 2002). 

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No. 17-10812
GREGG COSTA, Circuit Judge, concurring in the judgment: 

I agree that we should deny the petition because direct appeal affords the Petitioners an adequate avenue for pursuing this issue.1 I would leave it at that. The principle counseling against unnecessary rulings is strong in any case. But it is stronger still in the mandamus context. As an appellate court’s mandamus authority should be “reserved for really extraordinary causes,” Ex parte Fahey, 332 U.S. 258, 259–60 (1947), this matter, with its compressed time frame, is not the place to decide the merits. By reaching out to do so when it is not necessary to the outcome, the majority opinion makes mandamus the “substitute for appeal” that it is not supposed to be. Id. at 260. 

The existence of an adequate remedy via direct appeal means we should not address whether Petitioners waived their Lexecon rights. The Supreme Court has said that the inadequacy of any other remedy is the first requirement a petitioner must show. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004), quoted in In re Volkswagen of America, Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc). The priority given this condition makes sense as it is what “ensure[s] that the writ will not be used as a substitute for the regular appeals process.” Cheney, 542 U.S. at 380–81. The majority opinion demonstrates the danger when this limitation is ignored: in addressing the merits, the majority opinion renders meaningless the direct appeal it ends up recognizing as the proper remedy. After being told by a court of appeals that it reached a “patently erroneous” result, what district court is going to go 

1 In arguing that a direct appeal is inadequate, the dissenting opinion discusses settlement pressure the defendants may be feeling. But that pressure would be the result of more than 9,000 cases being filed, not where those cases would be tried (especially as the Northern District of Texas is hardly known as a hot spot for tort litigation). If anything, sending thousands of cases back to hundreds of district judges around the country is likely to accelerate the number of trials as there will no longer be the constraint of a single judge’s schedule and resources. 

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No. 17-10812 

forward with the trial Petitioners are trying to prevent? The majority opinion cites no other example of a mandamus court telling a district court its ruling is in error even though it concludes that a direct appeal is adequate. That is not surprising. Such an approach effectively grants the writ the court says it is denying, overriding the essential limitation that mandamus be granted only when it is the only vehicle for relief. With this precedent, any future mandamus court can decide the merits even when the remaining requirements are not present. 

As for the waiver question the majority opinion reaches out to address, Petitioners have not shown a “clear and indisputable” entitlement to relief. In another example of the restraint that should characterize mandamus review, that is the only question to consider. See, e.g., In re Beazley Ins. Co., No. 09- 20005, 2009 WL 7361370, at *6 (5th Cir. May 4, 2009) (“Beyond our conclusion that Beazley has not established a clear and indisputable right to the issuance of the writ, we make no pronouncement one way or the other as to the correctness of the district court's ruling.”). The district court did not misinterpret the law; it applied the same “clear and unambiguous” burden for establishing waiver that the majority opinion applies to Lexecon waivers “as a matter of first impression.”2 The factbound application of that standard is, as the majority opinion recognizes most courts have held, reviewed only for abuse of discretion. We should thus be applying deference on top of deference as the mandamus inquiry is not whether the district court abused its discretion, but whether it indisputably abused its discretion in finding that the following email exchange, among other conduct, clearly waived Lexecon: 

2 Holding that a court reached a “patently erroneous” result on a question that involves a matter of first impression is also in tension with the limited mandamus standard of review. 

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James M. Stanton [Special Master for the MDL]: Please confirm DePuy is willing to waive Lexecon for all MDL cases to be tried in Dallas. 

Seth Roberts [Council for the Defendant]: Confirmed. In order to allow the Court to select the next round of bellwether cases from a broader pool of cases that can be tried in Dallas, defendants have agreed to waive Lexecon objections to cases in the MDL proceeding being tried there. 

Even if other judges could find differently as an initial matter, or even if they could view the district court’s finding to be an abuse of discretion, that is certainly not the only possible conclusion to draw. But that is what mandamus requires; a district court’s ruling is not indisputably erroneous if a reasonable argument can be made to support it. Here is that argument based on three features of the emails quoted above, which were exchanged after Petitioners had won the first bellwether and had no strong reason to fear Dallas trials: 

• The first word is full agreement— “Confirmed”—with the Special Master’s broad, unqualified question whether DePuy is waiving Lexecon “for all MDL cases to be tried in Dallas.” The confirmation was not qualified, such as “Confirmed, but.” 

• The language Defendants tout as a limitation— “in order to allow this Court to select the next round of bellwether cases from a broader pool of cases that can be tried in Dallas”— describes the reason for the waiver, not its scope, and contemplates that a broader pool of cases can be tried in Dallas. 

• What is actually “agreed to” is phrased in broad, unlimited terms: “agree[ing] to waive Lexecon objections to cases in the MDL being tried there.” 

What is more, the three references to the plural “cases” defeats Petitioners’ interpretation that this exchange is limited to the second bellwether, which at the time it anticipated being a single plaintiff case. There 

are numerous ways that sophisticated counsel for the Petitioners could have 15 

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No. 17-10812 

phrased the limitation on their waiver they only started to contend exists after they lost the second trial. As those caveats were not contemporaneously asserted, the district court took an arguably reasonable view that Petitioners made an unambiguous waiver of Lexecon for all then-anticipated bellwethers, which includes the fourth trial at issue here. Indeed, the district court recently said that the Lexecon waiver is limited to these bellwethers with the upcoming trial being the last one. And this analysis does not even get into additional conduct on which the district court relied in finding waiver, including multiple reports of the Special Master recounting Petitioners’ waiver as a global one to which Petitioners did not object. 

But all this discussion about waiver is premature. We should allow the usual path of a direct appeal, which the majority opinion recognizes is available, to take its proper course and leave the merits to that future panel. I have concerns that an MDL process that takes trials away from local judges and juries adds to the centralizing trend that is so prevalent in the law and society generally. But in neglecting the strict limitations on our mandamus power to address the merits when we do not need to, the court engages in a different but also pernicious form of centralization: more power in the hands of appellate judges rather than the trial judge who has lived with the case for six years and knows the ins and outs of the parties’ representations. 

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No. 17-10812 

EDITH H. JONES, Circuit Judge, concurring in part and dissenting in part:
I am pleased to concur in Sections I, IIA and B of Judge Smith’s opinion, the latter of which hold that petitioners have shown a clear and indisputable right to relief from the district court’s patently erroneous interpretation of their Lexecon waivers and that mandamus relief would be “appropriate under the circumstances” of this case. I dissent, however, from Section IIC, which concludes that a pending appeal of one set of bellwether cases provides an 

adequate remedy at law rendering mandamus relief unavailable.
A few additional facts about this litigation need to be stressed. Not only are there presently over 9,300 cases pending in the Northern District of Texas for pretrial proceedings, but they comprise cases that were transferred from “home” districts of filing by the MDL panel and others that were “direct filed” in the Northern District without undergoing the formal transfer process. All of the New York cases set for trial in the instant “bellwether” case were “direct filed.” But for the possibility of a “global waiver” of personal jurisdiction, the Northern District had no claim to personal jurisdiction over the cases: none of the plaintiffs’ surgeries occurred in Texas; the plaintiffs aren’t Texas residents; and neither general nor specific jurisdiction exists over the petitioners for purposes of these disputes. For that reason, the district court relied solely on the “global waiver” and extended it from a waiver of venue for pretrial purposes only and for two bellwether trials to waiver of personal jurisdiction in all of the thousands of cases. Petitioners are being forced to trial over their objections 

to personal jurisdiction.
By comparison, a scholarly opinion from the Southern District of Texas 

in an MDL case resulted in dismissal of a nonresident defendant against which there was a “direct filed” case by a nonresident plaintiff. In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., No. CIV.A. H-10-171, 2011 WL 1232352 (S.D. Tex. Mar. 31, 2011). The court first noted that the 

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defendant’s agreement to transfer for purposes of pretrial proceedings was not inconsistent with and did not waive its personal jurisdiction challenge. 2011 WL 1232352 at *5–6. Finding no waiver, the court then decided that it lacked personal jurisdiction over the non-consenting defendant based on Heartland’s lack of minimum or relevant contacts with the Southern District of Texas. 2011 WL 1232353 at *6–10. In re Heartland is contrary to this case, in that the district court here ignored the limitations on the parties’ agreed order for direct filing. That order expressly states that, “[u]pon completion of all pretrial proceedings applicable to a case filed directly in the [MDL court], this Court may transfer the case, pursuant to 28 U.S.C. Section 1404, to a court of appropriate jurisdiction for trial.” (emphasis added). Moreover, the inclusion of any action in the MDL proceeding under the order’s auspices “shall not constitute a determination by this Court that jurisdiction or venue is proper in this District.” The petitioners’ failure to waive personal jurisdiction, as the panel majority hold, means that the district court is asserting “reach out and touch someone” power wholly at odds with its Constitutional and statutory limitations. See Point Landing, Inc. v. Omni Capital Int’l, Ltd., 795 F.2d 415, 423 (5th Cir. 1986) (en banc) (“[federal courts] must ground their personal jurisdiction on a federal statute or rule. As courts of limited jurisdiction, the federal courts possess no warrant to create jurisdictional law of their own.”) 

(internal citation and quotations omitted).
This is where I begin to differ with the majority’s holding that petitioners 

have an adequate remedy in a pending appeal of the third bellwether trial arising from California plaintiffs, some of whom direct-filed in the Northern District. I agree that mandamus relief should only be granted in unique situations and must be used “sparingly and with utmost care.” In re Chevron U.S.A., Inc., 109 F.3d 1016, 1021 (5th Cir. 1997) (Jones, J. concurring). But this is not simply a case in which reasonable minds can differ over the court’s 18 

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finding of waiver. Nor is the irreparable harm alleged by the petitioners simply the cost of trying and possibly appealing the judgment from another set of bellwether plaintiffs, although that will be more millions of dollars. See In re Lloyd’s Register North America, Inc., 780 F.3d 283, 295 (5th Cir. 2015) (when the issues in mandamus have significant ramifications, the pendency of 

another appeal in this court strengthens the case for mandamus relief).
The Supreme Court has stated that “[t]hese hurdles [to the issuance of mandamus relief], however demanding, are not insuperable.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 381, 124 S. Ct. 2576, 2587 (2004) (granting writ). There are numerous ongoing ramifications of the court’s erroneous decision that harm not only these petitioners but, importantly, the plaintiffs in 

these 9,000+ cases.
First, when a court plainly acts in excess of its jurisdiction, mandamus 

may issue to prevent the usurpation of power. Abelesz v. OTP Bank, 692 F.3d 638, 653 (7th Cir. 2012) (“If there were a colorable argument supporting the district court’s exercise of jurisdiction, we would view this case differently. The overwhelming clarity of this issue, however, calls for use of the extraordinary writ of mandamus to confine the district court to the proper exercise of its jurisdiction”); see also In re Impact Absorbent Techs., Inc., 106 F.3d 400 (6th Cir. 1996) (“[a]lthough uncorrectable damage may not result if petitioners are forced to wait for a remedy on direct appeal, the clearly erroneous nature of the district court’s order calls for a more immediate remedy.”); see also Holub Indust., Inc. v. Wyche, 290 F.2d 852, 856 (4th Cir. 1961). Ordinary appeal can be an inadequate remedy if the “challenged assumption or denial of jurisdiction” is “so plainly wrong as to indicate failure to comprehend or refusal to be guided by unambiguous provisions of a statute or settled common law doctrine.” Am. Airlines v. Forman, 204 F.2d 230, 232 (3rd Cir. 1953). 

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Second, the lack of personal jurisdiction is not the only problem here, 

because petitioners’ issues necessarily embrace improper venue. Where there is no personal jurisdiction over the petitioners, the trial is in an improper venue. Moreover, petitioners note they never consented to waive venue for any proceedings beyond the pretrial stage of these cases. The majority’s focus on the alleged sufficient remedy for lack of jurisdiction in the pending appeal overlooks that where venue is improper, this court has held that appeal is an inadequate remedy rendering the grant of mandamus relief mandatory. In re Volkswagen of Am., Inc., 545 F.3d 304, 319 (5th Cir. 2008) (en banc) (“an appeal will provide no remedy for a patently erroneous failure to transfer venue”); In re Ford Motor Co., 591 F.3d 406, 416 (5th Cir. 2009) (same). 

Third, the appellate remedy is inadequate when the error the parties are subjected to will be repeated. “Mandamus is particularly appropriate here because of the potential for the trial court to repeat” its error. Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1237 (10th Cir. 1986) (writ granted). The district court has misinterpreted the petitioners’ case-specific waivers to hold that it may potentially try all 9,000+ cases in the Northern District of Texas, no matter their lack of any connection with this state, much less its district. As confirmed by plaintiffs’ counsel in oral argument, that is what the court means by a “global waiver.” Even though a curiously timed late-breaking order of the trial court states that no further bellwether trials will occur, this does not signal a retreat from its holding that a “global waiver” occurred. Nor does the order retreat from the court’s repeated refusals to slow down its processes while the appeal of jurisdiction in the third bellwether set of cases is taking place. Repetition, or surely threatened repetition, of its error, manifestly deserves correction at the earliest moment. 

Fourth, the appellate remedy is inadequate where the court’s error is likely to affect cases beyond those before us. “Writs of mandamus are 

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supervisory in nature and are particularly appropriate when the issues also have an importance beyond the immediate case.” In re Volkswagen, 545 F.3d at 319. Such effects are foreordained where the court is managing thousands of cases and the usual object of MDL management, especially with bellwether trials, is to incentivize rational settlements. Even though the third and fourth grouped bellwether cases have been tried without proper venue or jurisdiction, and the results from an unauthorized forum may be skewed in numerous ways, their impact on the parties’ settlement approaches cannot be denied. The pressure to settle will be ongoing until final resolution of an appeal in this court or even in the Supreme Court. That a court’s patent errors can compound into unjust settlements is well recognized and has led courts to find mandamus a necessary remedy even where a possibility of ultimate appellate relief exists. Abelesz, 692 F.3d at 652–53. The undeniable pressure on defendants to settle 

is a reality in these alleged mass tort cases.
Fifth, the appellate process in both the third and fourth grouped 

bellwether cases will extend for several years. Briefing will not even begin until the end of September 2017 in the third such case. One may reasonably predict that this court’s processes, even without en banc review, would not conclude until the end of 2018 at best. The certiorari process would extend for many months thereafter. Concomitantly, the parties may be pursuing appeal in the fourth grouped bellwether cases, the subject of this petition, leading to various potential interactions between the two appeals in this court. Thus, it is unlikely that the “sufficient” appellate process will have concluded before 2019 or 2020. Suppose the petitioners, who have allegedly denied any intention to settle, pursue this lengthy process? In the meantime, what happens to the 9,000+ plaintiffs in this litigation that began in 2011? 

The majority’s decision to deny relief overlooks the impact on the plaintiffs. If the district court lacked jurisdiction over these direct-filing 

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plaintiffs’ cases, as our panel majority concludes, they will receive a take- nothing judgment nearly a decade after their suits were filed and will have to start all over—if they have the stomach for it. For the remaining thousands, the goal of the bellwether process will have been perverted by unreliable judgments, delayed by the appeals, and undermined when those judgments are reversed. Allowing the court’s conduct of trials outside its jurisdiction to spawn such unpredictability and unfairness will harm petitioners or plaintiffs and most likely both. Such an outcome belies the goals of efficiency, economy, fairness, and predictability for which the MDL system supposedly exists. See 28 U.S.C. § 1407(a) (“[T]ransfers shall be made by the [MDL panel] upon its determination that transfers for such [pretrial] proceedings...will promote the 

just and efficient conduct of such actions”).
A final word about Judge Costa’s separate opinion. First, we do not owe 

“double deference” to the district court even if (and Judge Smith’s opinion takes no firm position on this) the question of waiver of personal jurisdiction should be reviewed for abuse of discretion on appeal. Judge Smith’s opinion emphasizes that the “mandatory language [of Section 1407] creates a powerful presumption in favor of remand . . . ,” hence the “clear and unequivocal” standard for a Lexecon waiver. The record, viewed in its proper context, does support the wholesale abrogation of petitioners’ remand rights and assumption of jurisdiction that the district court did not have. Second, mandamus relief can be justified when courts must address new or evolving legal issues. See, e.g., United States v. Horn, 29 F.3d 754, 770 (1st Cir. 1994); see also 16 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Juris. Section 3934.1 (3d Ed. 2004 & Supp. 2017). Finally, for my own part, I am not concerned about the “centralizing power” inherent in MDL proceedings when they are confined, as the statute says, to pretrial matters or to bellwether cases to which both parties have expressly and unequivocally consented. I am even less concerned 22 

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about the “centralized power” of federal appellate judges when the downside of withholding such power, as I have shown, is the district court’s abuse of its limited jurisdiction, waste of trial resources, huge expenditure of legal resources on utterly unnecessary jurisdictional wrangling, and ultimately, the forfeiture of public confidence in a system that can achieve neither efficiency 

nor economy in handling mass tort cases.
The issuance of a writ in this unique case, a “bellwether” for thousands 

more, would do what the writ was intended to do—confine the district court to a lawful exercise of its prescribed jurisdiction. See Cheney, 542 U.S. at 380, 124 S. Ct. at 2576. I respectfully dissent from the denial of relief ordering the district judge not to try the instant grouped cases over which he lacks personal jurisdiction.