Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit

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.

Here’s a breakdown of the Fifth Circuit’s decision:

  • Smith and Edith Jones, both Ronald Reagan appointees, found that Kinkeade abused his discretion in finding that Johnson & Johnson had waived venue for all trials in the Pinnacle MDL. “That was grave error,” Smith wrote. Addressing an issue of first impression, he wrote that a Lexecon waiver must be “clear and unambiguous.”
  • But Smith and Jones parted on whether to grant mandamus. Jones opted to do so. “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,” she wrote. “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.” But Smith sided with Circuit Judge Gregg Costa, a Barack Obama appointee, that Johnson & Johnson’s petition shouldn’t be granted because it could raise the matter in an appeal of a potential verdict in the fourth bellwether trial.
  • Costa added that the panel shouldn’t even have decided the merits of Johnson & Johnson’s petition. “After being told by a court of appeals that it reached a ‘patently erroneous’ result, what district court is going to go forward with the trial petitioners are trying to prevent?” he wrote. He also raised concerns that the majority’s holding on venue gives “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.”