IN THE COURTS
SIXTH CIRCUIT REINS IN OPIOID MDL JUDGE
In April 2020, the U.S. Court of Appeals for the Sixth Circuit clarified what rules apply in multidistrict litigation and reversed a district court’s clear abuse of discretion in In Re: National Prescription Opiate Litigation. In the decision, which was issued on April 15, 2020, the Court held that the Federal Rules of Civil Procedure apply to MDLs “just as it does in individual litigation.”
Writing for the court, Judge Raymond Kethledge stated, “MDLs are not some kind of judicial border country, where the rules are few and law rarely makes an appearance.” He continued, “an MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone.”
The opinion arose out of the opioid multidistrict litigation pending in federal court in Ohio. The MDL includes more than 2,700 cases filed by counties, municipalities and states from across the country. The Court was asked to address three rulings by the lower court that disregarded the Federal Rules of Civil Procedure. The district court allowed the counties to amend their complaint to include additional allegations against several pharmacies 19 months after the deadline and required the defendants to produce data for almost every opioid prescription filled anywhere in the United States for the past 13 years.
As a result of this decision, bellwether cases against the pharmacies over dispensing allegations may not proceed because the claims were added too late.
While multidistrict litigation is meant to increase the efficiency of the judicial system, the Court insisted that, “an MDL court must find efficiencies within the Civil Rules, rather than in violation of them.”
MARYLAND HIGH COURT ADOPTS HEIGHTENED EXPERT EVIDENCE STANDARD
On August 28, 2020, Maryland joined the supermajority of states and federal courts in providing judges with the authority and responsibility of keeping “junk science” out of the courtroom. Since 1978, Maryland had allowed expert testimony on the “generally accepted” methodology basis even if the expert’s conclusions are not. The federal courts abandoned this test in 1993, instead empowering judges to serve as gatekeepers over the reliability of proposed expert testimony. In replacing the “Frye” test with the “Daubert” standard, courts charged judges with analyzing expert testimony to ensure it is consistent with sound science, which allows judges to weigh considerations like peer reviews, methodology testing, error rates, whether the data supports the testimony, in addition to whether the methodology is generally accepted.
The case that delivered Maryland’s welcomed change is Rochkind v. Stevenson, which involved whether a child’s exposure to lead paint over the course of fifteen months in the defendant’s apartment building caused her to develop ADHD. The trial court admitted expert testimony from a pediatrician indicating that this short- term exposure was a “significant contributing factor” to development of ADHD and “not new science.” Since Maryland courts had only scrutinized the admissibility of “novel scientific theories,” it focused more on the expert’s qualifications, than the reliability of the expert’s theory.
A 4-3 majority of the Maryland Court of Appeals adopted the Daubert standard and instructed that trial courts apply it to all expert testimony. It explained that, under this approach, “the parties and the trial court are forced to reckon with the factors that really do determine whether the evidence is reliable, relevant and ‘fits’ the case at issue.” When properly applied, the Court of Appeals noted, Daubert “expose[s] evidentiary weak- nesses that otherwise would be overlooked if, following the dictates of Frye, all that is needed to admit the evidence is the testimony of one or more experts in the field that the evidence at issue derives from methods or procedures that have become generally accepted.”
TENNESSEE UPHOLDS NONECONOMIC DAMAGE LIMIT
The Tennessee Supreme Court, in February 2020, rejected an invitation from plaintiffs’ lawyers to invalidate the state’s statutory limit on noneconomic damages, which applies to all personal injury cases. The state legislature adopted the law as part of a package of civil justice reforms Tennessee enacted in 2011 to control runaway verdicts, while providing plaintiffs with reasonable compensation for pain and suffering.
That case, McClay v. Airport Management Services, involved a woman who injured her foot when visiting a store at the Nashville International Airport. A jury returned a verdict that included $444,500 for medical expenses and $930,000 for pain and suffering. The defendant then requested that the trial court reduce the noneconomic damage portion of the award to $750,000, the maximum permitted by the statute for non-catastrophic injuries.
The state high court respected the legislature’s authority to alter tort law and define available remedies without intruding into the jury’s task of deciding factual issues. The Court also found that a statutory cap on noneconomic damages does not interfere with the judicial power of the courts, which interpret and apply the law. The decision was particularly important because the Tennessee Supreme Court found unpersuasive an outlier decision by the U.S. Court of Appeals for the Sixth Circuit which had, two years earlier, “guessed” that Tennessee courts would find caps on damages violates the state constitution’s right to jury trial.
Three months later, an intermediate appellate court in Tennessee applied the McClay ruling to uphold application of the statutory limit in a medical liability case, where such constrains are especially important. In that case, Yebuah v. Center for Urological Treatment, a healthcare provider had admitted fault after a doctor accidentally left a medical ring inside a patient’s body during a surgery that removed a cancerous tumor. A jury awarded the plaintiff $4 million in damages for pain and suffering and lost enjoyment of life, and $500,000 to her husband for loss of consortium. The Court of Appeals rejected the plaintiff’s constitutional challenges to application of the statutory limit to the award, following the McClay decision.
As explained in the amicus brief ATRA joined to support the constitutionality of the Tennessee law in McClay and Yebuah, statutory limits on noneconomic damages ensure that liability remains reasonable and predictable, stops unreasonable demands that complicate the ability to fairly resolve litigation, and promotes consistent treatment of individuals with comparable injuries. In the medical liability context, these laws have proven effective in expanding access to care and reducing costly and unnecessary defensive medicine.
