McCoy v. DePuy Orthopaedics, Inc.

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 BARBARA MCCOY, Case No.: 22-CV-2075 JLS (AGS)

12 Plaintiff,

ORDER SETTING HEARING FOR

13 v. MOTION TO DISQUALIFY

PLAINTIFF’S EXPERT STEPHEN

14 DEPUY ORTHOPAEDICS, INC.;

LI AND TO DISCUSS CHOICE-OF-

DEPUY PRODUCTS, INC.;

15 LAW ISSUES

DEPUY SYNTHES, INC.;

16 JOHNSON & JOHNSON; JOHNSON

(ECF Nos. 44, 60, 65, 66)

& JOHNSON SERVICES, INC.; and

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JOHNSON & JOHNSON

18 INTERNATIONAL,

19 Defendants.

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21 Presently before the Court are the Parties’ Joint Status Report (ECF No. 60), the

22 Parties’ Joint Proposed Case Management Schedule (ECF No. 65), and Magistrate Judge

23 Andrew G. Schopler’s Scheduling Order (“Sched. Order,” ECF No. 66). Also before the

24 Court are Defendants’ “Motion to Disqualify Plaintiff[’]s[] Expert[ ] Stephen Li” (“Li

25 Mot.,” ECF No. 44), to which no opposition has been filed; the Parties’ motions to exclude

26 certain experts’ opinions (ECF Nos. 40 & 41), to which responses have been filed (ECF

27 Nos. 52 & 54); and the Parties’ Motions in Limine (ECF Nos. 46 & 47), to which no

28 responses have been filed (collectively, the “Pending Motions”). Judge Schopler ordered

1 Plaintiff to respond to the Li Motion on or before February 24, 2023. See Sched. Order

2 ¶ 1. As to the remainder of the Pending Motions, “Defendants respectfully request a status

3 conference to discuss how the Court prefers the Parties to address the completion of this

4 briefing and any corresponding deadlines.” ECF No. 65 at 3, 4. Specifically, it appears

5 Plaintiff Barbara McCoy seeks to have the Court apply the rulings from the bellwether

6 cases heard by Judge Ed Kinkeade in the multidistrict litigation (“MDL”) of which this

7 case was a part, while “[i]t is Defendants’ position that the briefing previously filed in the

8 MDL will need to be re-briefed to comply with the law of the transferee court and its local

9 requirements and rules.” Id. at 3; see also id. at 4.

10 In light of the foregoing, the Court SETS a hearing for March 16, 2023, at 1:30 p.m.

11 in Courtroom 4D of the Edward J. Schwartz United States Courthouse to address (1) both

12 the merits of the Li Motion, and (2) Defendants’ request that certain motions previously

13 filed and/or decided in the MDL be rebriefed.

14 As concerns the latter point, the Court offers some preliminary thoughts. In the

15 absence of any Party asserting otherwise and in accordance with the weight of authority,

16 the Court will apply the substantive law of the State of California in this diversity action

17 that was directly filed in the Northern District of Texas pursuant to a Case Management

18 Order in the MDL but which would otherwise have been filed in this District. See, e.g.,

19 Allen v. Am. Cap. Ltd., 287 F. Supp. 3d 763, 774–75 (D. Ariz. 2017) (compiling cases and

20 applying foregoing rule); Looper v. Cook Inc., 20 F.4th 387, 391–93 (7th Cir. 2021)

21 (analyzing history of the “weight of authority” on this issue). Choice-of-law rules are

22 substantive in nature. See Allen, 287 F. Supp. 3d at 775; First Intercontinental Bank v.

23 Ahn, 798 F.3d 1149, 1153 (9th Cir. 2015) (citation omitted).

24 Meanwhile, as a general rule, a court sitting in diversity applies federal procedural

25 law. See Allen, 287 F. Supp. 3d at 774 (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78

26 (1938)). In so doing, a transferee court generally applies the federal law and procedure of

27 the jurisdiction in which it sits rather than the law of the transferor court. See, e.g., Grant

28 & Eisenhofer, P.A. v. Brown, Case No. CV 17-5968 PSG (AFMx), 2018 WL 3816721, at

1 || *3 (C.D. Cal. Feb. 16, 2018) (citations omitted). Nonetheless, in MDL cases, the rulings

2 || of the transferor court are generally considered law of the case, and courts tend to be loath

3 || to revisit generally applicable legal issues already decided, even if decided under different

4 circuit law. See, e.g., Parks v. Ethicon, Inc., No. 20CV989-LL-RBB, 2022 WL 2239339,

5 at *2 (S.D. Cal. June 22, 2022) (“This Court is not inclined to refute or revisit an order

6 ||from the MDL court.”) (citation omitted); David F. Herr, ANNOTATED MANUAL OF

7 || COMPLEX LITIGATION § 20.133 (4th ed.) (“Although the transferor judge has the power to

8 || vacate or modify rulings made by the transferee judge, subject to comity and ‘law of the

9 case’ considerations, doing so in the absence of a significant change of circumstances

10 || would frustrate the purposes of centralized pretrial proceedings.”’) (footnote omitted).

11 In light of the foregoing general principles and in the interests of comity and

12 || efficiency, the Court is disinclined to revisit rulings made by the MDL court to the extent

13 ||they are generally consistent with California and Ninth Circuit authority. To the extent

14 || Defendants believe rebriefing is necessary and appropriate, Defendants SHALL FILE,

15 || within seven (7) days of the date of this Order, a brief, not to exceed ten (10) pages,

16 |/addressing why, under California’s “governmental interest” test for choice-of-law

17 || determinations and the law of the case, this Court must redecide under Ninth Circuit law

18 |/issues previously determined under Fifth Circuit law in the MDL. See, e.g., Cooper v.

19 || Tokyo Elec. Power Co. Holdings, Inc., 960 F.3d 549, 559-65 (9th Cir. 2020) (setting forth

20 applying California’s choice-of-law test); Allen, 287 F. Supp. 3d at 776 (noting that

21 || district courts within the Ninth Circuit have applied the law of the case doctrine to MDL

22 ||cases). Plaintiff MAY FILE, within seven (7) days of the date on which Defendants file

23 || their brief, a responsive brief, also not to exceed ten (10) pages, addressing the same issues.

24 IT IS SO ORDERED.

25 ||Dated: February 16, 2023 (ee

%6 on. Janis L. Sammartino

United States District Judge

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