Faced with the prospect of having to defend another costly test-case trial in a multidistrict litigation proceeding involving over 9,000 plaintiffs, the defendants (petitioners before the Court of Appeals) filed a writ of mandamus challenging the district court’s decision that they waived their jurisdictional and venue objections (known as a Lexecon waiver).  Had the Court of Appeals granted the writ, the district court’s decision would have been reversed and the upcoming test-case trial would have been stopped for lack of jurisdiction and venue.  While the Court ultimately denied the writ, it did so in a way that advanced the defendants’ case.  In re: DePuy Orthopaedics, Inc., No. 17-10812 (5th Cir. Aug. 31, 2017).

To successfully secure a writ of mandamus, a petitioner must establish the following: 1) the petitioner has a “clear and indisputable” right to the writ (which goes to the merits of the claim), 2) the Court of Appeals is “satisfied that the writ is appropriate under the circumstances” (which is present when the issue at stake goes “beyond the immediate case”), and 3) the petitioner has “no other adequate means to attain the relief [it] desires” (which is most often lacking due to one’s right to direct appeal).

In this case, the three-judge panel was divided.  Judge Edith H. Jones found the writ was appropriate because 1) the district court abused its discretion in finding that the defendants made a clear and unequivocal Lexecon waiver, 2) this waiver was also at issue in the remaining 9,000 plus cases, and 3) forcing the defendants to wait to seek relief via direct appeal would be inefficient and further delay the plaintiffs’ ultimate day in court.  Judge Jerry E. Smith agreed with Judge Jones as to the first two elements, but also sided with Judge Gregg Costa, who only found that the defendants failed to show that there were no other adequate means to attain relief in light of their ultimate direct appeal rights.  As a result, a majority of the panel (Judges Smith and Costa) ruled that the writ should be denied due to the defendants’ right to direct appeal.  But, because a separate majority (Judges Smith and Jones) found the first two elements were met, the divided panel also ruled that the “majority requests the district court to vacate its ruling on waiver and to withdraw its order for a trial.”

In effect, the Court of Appeals denied the writ of mandamus, leaving direct appeal the only avenue for the defendants to seek relief regarding their jurisdictional and venue challenges (should they lose at trial), yet signaled to the district court and the parties that the defendants would likely prevail on appeal.

From a strategic perspective, despite their loss, the defendants are now in position to try the case confident they will prevail on appeal should they lose.  Conversely, the plaintiffs are facing the prospect that they will most likely lose on appeal, even if they win at trial.  Meanwhile, the district court may now reconsider its earlier ruling regarding defendants’ Lexecon waiver and, on its own or by request of either party, halt the upcoming trial.  This case illustrates that even in defeat, victory may be found by filing a writ of mandamus.
