Legal Case Summary

I'm here today to address the issues present before the court. Those issues being the denial of plaintiffs and appellants motion to remand. The discovery sanctions issued by the district court dismissing appellants case. And the abusive discretion exercised by the district court and denying reconsideration. I have to ask this is a strange procedural case. No argument there. And I'm just thinking in terms of that discovery document, the judge ordered you to provide. And you didn't do it because you said, well, I got this whole motion to remand. And I don't want it to look like we waved and, you know, all right. All well and good. Well, any rules on the remand and you still don't file it. I don't get it. And then when you do, when then ultimately you get a dismissal without prejudice, which I assume without prejudice to refile, including the document. I don't know if that's what it is. I hadn't thought about the statute of limitations on it, but it's without prejudice. And you still don't do that. What you do is you bring the doc, you do a document that's more inclusive, include all that information. And then you bring in a motion to reconsider based on newly discovered evidence. There's not newly discovered at all there. It was already there. So I can't understand the procedural posture of it. Why didn't you move to a man and refile it? It seems like that would have cured it. A wood... There was an additional question presented to the court as to mootness. And that was addressed by supplemental creepy... Well, Ms. Don't lose me, because sometimes I'm kind of thinking procedure in terms of court tells you you can dismissing with those wonderful magic words without prejudice. And all you have that you have to do is do that document. And you still didn't do it

. I mean, you come back and you say motion for reconsideration. And I'm... It's dismissed. And so I guess you're trying to get them to bring it back on instead of filing again. We did file again. In California. Correct. Yes. Is that... That's where it all started. Well, if you've filed again, then what is here? What is here, Your Honor, is the original case, not the subsequently filed case, should have been... You filed to comply when the judge says dismissed without prejudice. You then complied by refiling. Is that what you're saying? It was without prejudice and we refiled. So what is here? In California. In California. In California, but it's refiled. You say you're complying with it and that can be removed to the federal court too possibly. So I mean, I don't get it. Whether or not you filed, your contention is you refiled. In compliance with the order that says your case is dismissed without prejudice. So you then refiled. Is that your signature? No. I didn't understand that. Well, let me make sure I understand this because this is central to my understanding. It's because procedurally it is

. I did a little litigating. I don't quite understand this one. It is intriguing. So you refiled the California action that had been removed to federal court. I refiled a new action. Totally new action. Has nothing to do with this one. New case number. I'm not going to say that the facts are not the same, but the facts and the allegations are the same. So I will turn this a loose on this because I just want to make sure I understand. Yeah, I want to win you. But let me make sure I understand this question. Sure. When you refiled in California, you are not doing so in compliance with or as a response to the district court's order that you it is dismissed without prejudice to refile. That's not what you were doing in California. There was no order to refile your honor without prejudice. Right. Because without prejudice, we I refiled in California, in the California state court. Well, now she's my question differently. Now you're saying you did it because you gave you without prejudice, so you refiled. Yes. So what's here? What's here? If you refiled it there in compliance with what are you doing now? Okay. Can I answer your question, your honor? Yes. Okay. So what's going to happen here, your honor, on the new case? That's been refiled in California. And as your honor just pointed out, more likely than not, it's going to get removed. It's going to get removed to the United States District Court for the Central District of California. At the con is then going to file the MDL transfer order and it's going to be transferred back to the Southern District of West Virginia. What if we grant you the relief today that you asked for? That is reconsider and bring the one that you already got in federal court. Do you then have two lawsuits? No, I dismiss the..

. Oh, you're not going to tell anyone now. Then you're going to dismiss the one you just refiled and then keep the one you got. Exactly. Yes, we were dis... It hasn't been served. Now, Ethicon has brought it up here, but it's not part of the record before this court. They've brought it up because they are aware of it. And I'll leave it as the problem it seems to me. When your case was dismissed, you had only one problem. Wasn't that your pleadings weren't good? Wasn't anything else? Your problem was you hadn't filed that discovery device. And this is a federal case. All right, and you already told you you lost the one for remanding so you can't remand. Nothing to be remand. You've lost that. And unless you appeal it, you just can't remand that case. And it is the strangest thing in the world. If you go back to California and file the same action that he told you, you can't remand. So you go back and just refile it. And you're saying you're not filing it based upon the dismissal without prejudice. You seek a motion to reconsider on newly discovered evidence when there's nothing newly discovered about that document that you could have filed before. In fact, you could have filed it after they judge rule that you can't remand it. But you didn't. You didn't get until it was dismissed. Then you filed something that was more expansive. And it is the strangest procedural thing I have seen. But you know- You're just seeking statute of limitations insurance, aren't you? Isn't that what it comes down to? The prejudice, yeah, that will resolve- That's what this is all about. Right. Exactly. I mean, if this court does not grant the relief- Right. I understand full of the statute of limitations, implications of this, that without prejudice aspect of it, it's something that I'm just thinking, why didn't you keep this thing alive and federal court by simply following that document, moving to a man and asked the court to just treat this as an amendment and allow your action to go forward because you now complied with the only thing that resulted into dismissal

. Wasn't a sufficiency of the pleading, wasn't anything else. It wasn't dismissed on a substantive ground. Was that one little thing? And you just didn't. He's got thousands of these cases. So I can't imagine he's all carrying one of- Well, if one stays or not. Well, there's multiple questions there and issues that the court judge when you brought up. But you had 40 days if you could add that into the question pot. Why in the world did you sit around for 40 days after you had your ruling form Judge Goodwin and not file the form, not seek to amend your complaint? Judge Goodwin had identified the problem. If you could add that to Judge Goodwin's question. Petra- pretrial conference pretrial order 17. Basically gives 60 days from the date that the short form complaint, not to confuse the things, but 60 days from the filing of a short form complaint, to file the plaintiff's profile form, the PPF. During the 40-day period between the court's order on remand and the court's dismissal order, again, keeping in mind the dismissal motion was filed in December of 2012. The motion for remand or the remand, the motion for remand was filed in May of 2012. The remand was denied on April 10, 2013. The dismissal was granted on May 20, 2013. Reconciteration was denied on June 18, 2013. So, to answer Judge Goodwin's question, there was 60 days that I believe, from the point in time that the court more or less acquired jurisdiction, because plaintiffs had waited almost a year to get a ruling on their motion to remand. The motion to remand was incorrectly ruled upon by- I'm briefly- why is that? Briefly. Thank you for the question, Judge Adonkan. The court principally relied upon a case which is not published, but is found on West love, just as versus branch baking and banking and trust company. That case, they cite Indicta only a case of Jernigan, which stands for the proposition that fraudulent jointer cases do not have- I am low to interrupt you, given that you've had very little time for your argument, but it's precisely because I'd like to get to a direct answer that I'm doing. So, please excuse me. Why wasn't the district court correct in holding that the California defendants were fraudulently joined? Because as I understand it, California is a fact- pleading state, and the complaint doesn't allege that the healthcare providers had knowledge that the device was unreasonably dangerous. In fact, the brief is replete with references to the fact that the plaintiff doesn't know what, if anything, the California did it's new about the risks of the device. So, why wasn't without challenging its reliance on unpublished precedent, why wasn't the district court independently correct in holding that the complaint doesn't state a cause of act, a claim, a connoisseable claim against them? Because- What relief could you obtain? Are you the warn? And California does recognize a failure to warn? They do recognize a failure to warn, but your complaint does allege that they had knowledge, which would have to be- which would be the basis of a failure to warn. You don't allege that they were aware that the device was unreasonably dangerous, that they knew about the risks of the device. Or that they should have known. Or that they should have known. And Judge Goodwin identified this defect for you, and yet you still didn't try to amend. In- Well, in response to Judge Duncan's case and- or question, I'm sorry- Tressimer, the case cited in our brief, not only requires healthcare providers to provide notice and warning before services provided, but also after services provided. So the- The failure to warn cause of action would- would be applicable and should have been allowed to- have been amended. Now you're saying I should have moved to amend the complaint

. And that would have- I'm a little bit concerned about Judge Goodwin's question. That would have alleviated the problem and of remand. I- I don't think that at that point, your honor, after remand was denied that we could- at that point seek to amend or appeal the remand order. What we could do is- comply with pretrial conference order getting back to Judge Keynan's- question of- Providing the documents requested. And during that 40-day period, and I hope I'm answering Judge Duncan's question too- during that 40-day period, we compiled and marshaled together as much information as we could. There was multiple treating doctors involved in records that had to be acquired to provide the information requested. You know, it's funny though, you filed a really long form that you didn't file the short one. We didn't because- This- this profile form is really- I mean, it's almost something I could fill out for you based on my knowledge of the record. And yet you filed the much more detailed one. Because your honor, we wanted- We did not want any of the defendants in this action to be prejudice. This would have been and could have been, and I believe that's one of the- prejudices that's being argued by Ethicon, is that they would deprive the opportunity to have this be included in a bill whether- one of the bill-weather cases. So if they wanted this into- as one of the bill-weather cases, there's certainly no objection on a pellets part to have it included. So I wanted them to have as much information as they possibly could. We had 60 days from the point in time that the court exercised jurisdiction. We'd waited almost a year for the ruling, the ruling came down. The ruling was incorrect in getting back to Judge Duncan's question. And I'm sort of going beyond my time here, but I do want that answered. Excuse me. You do have some time for a bottle. So if you want it to briefly conclude, you can follow up for a bottle. Let me ask you on that failure to warn. Is it the position that you would have to establish that the failure to a one was known in 2003 at the time of the surgery? Or is there some continuing duty to warn that you are a surly? In California, in California under Tressimer, which is still good law, there is a continuing duty on the part of the healthcare providers to warn. And to continue to warn post-service. So five years after having put this in, they get information that there's a real problem here. There's a duty in California to warn a patient that you've installed one of these measures in. That gets into the learned intermediary theory. And what that means is basically ethical and sends a letter to the healthcare providers. And again, keep in mind the healthcare providers are not here, do not join in the motion. Filed an answer. And anyway, getting back to Judge Wins' question. Yes, they do have an obligation to continue. They get a letter

. The problem with the problem with that is you did in your brief, you did indicate that you have no reason to know whether they knew of the risks after the fact either. It seems to you pretty much acknowledge that claim out of existence by saying you have no basis to suggest that they knew of the risk either before or after the fact. They knew after. They had to know after. At some point. But you brief indicates a lack of knowledge on your part of that. On the part of the appellate. Whether the healthcare providers, the defendant and healthcare providers knew of the risk after the fact. After the fact of the operations. We alleged that they failed to give notice. Now whether or not we would have. It would have been more appropriate to say there was a lack of warning or failure to warn or a failure to notice. That does not give rise to sufficient support to dismiss plaintiffs claim without an opportunity to address the merits of her case. The procedural aspects of this case are just a total violation of due process here. Did you have a question or do you want me to wrap it up? No, thank you. I think I would appreciate it if you would follow up on rebuttal. Okay, well do. Thank you. It would be good when you come back if you point to that specific language in the complaint that you say establish that allegation just done. Well do you. Well do. Mr. Combs. May it please the court on Phil Combs. I'm here on behalf of Bethacan and Johnson and Johnson. I want to start by addressing the fraudulent joint analysis because obviously the court didn't have jurisdiction. We don't get to the motion to dismiss. Your honors. I just don't know what more judge good one could have done in this case. I mean this claim that we're now talking about about a negligent post implantation duty to warn is something that's not even in the complaint. And it's just there's no mention of it. What do you think about complaints in a liberal way when you make an allegation? Those are the kinds of things you can develop on summary judgment and some things you maybe sometimes you do it on information and believe

. But to state a fade of wine you do look at the state law. And if the state law encompasses a broader concept of fade of wine has seemed to be alleged years that here the California has a broader concept of a fade of wine it encompasses it. Seems to make sense. I mean you put a message in someone and you find out three or four years later that that thing is really really bad. Do you have a duty then to call up the patient says you got something that's going to explode on you or cause a problem. You need to come back in or do you just say well we did that we didn't know that back in 2003 and that's all well and good. Well let me let me address this. So it's a liberal pleading aspect of it if there's language that will support that that seems to might be a way to give some pause on that. Well I have several several responses now. First California is in fact a fact pleading state that set forth a California procedural code for two five point ten a one and it's mandatory. It says the complaint shall contain a concise statement of the facts that support the cause of action. The second thing is there is no allegation at all made in this complaint regarding a failure to want to claim. I mean there's nothing said that risk for you. That's the key. That's why I asked to put it to come back and show it to us and you can answer Judge Duckett's question if it's not in there then no need for us to talk about. And it's just absolutely not in there and the additional point I want to make is never was Judge Goodwin asked to consider an amendment to the complaint. I mean Judge Goodwin did everything he could do to give Mrs. Forrest a fair day in court. And what he did is under this court's rulings in May's V. Ramp report and AIDS Clinic and testing centers is he said I'm not just going to look at the complaint. I'm not just going to look at those allegations. I'm going to look at the entire record. And on April 10, 2013 when he decided this remand motion there was nothing in the record that would support that the doctor knew of this should have known of this and under the Tressimer case. So again I just want to reinforce we're talking about Judge Goodwin considering something that the plaintiffs had never even raised in an effort to be as fair as he could to this plaintiff. But if we're now talking about the Tressimer case which is the only issue that they're arguing on appeal. They're saying Judge Goodwin got this wrong this issue we didn't raise but he got it wrong. But if we go to the Tressimer case it requires actual knowledge. There is a case in California it's Tressimer and Tressimer says that under certain circumstances you may have a post-implantation duty to warrant. It's not an absolute duty. I mean but I do agree that there is that potential cause of action. But what Tressimer says is that you would have to have actual knowledge of the risk. And there's not a single fact alleged in this record anywhere that the doctor had actual knowledge or should have had

. Under Tressimer he's got to have actual knowledge. It's just flat out not there. And the appellate will not be able to point that it is there because it was nothing was ever given to Judge Goodwin that would say this doctor had actual knowledge of this post-implantation risk. So we have the motion to remain we'll discuss in that and that's from a perspective to determine whether we even get to the motion to dismiss. But the motion to dismiss is without prejudice and typically we've considered that to be in a locatory. So why is there no discussion of that? I mean, even more puzzling why didn't you support when we asked for supplemental response on that you seem to concede on it? Well it's possible that I'm wrong on it or it's possible that I don't understand the court's question. And I assess the court's inquiry on that as a question regarding movements. Did this additional follow on action that they filed in California, moot this appeal? And that was how I assess. Okay, well put the way, put the way my I see it as a question of appealability. As Judge Goodwin said, dismissals without prejudice are generally not appealable. They're not final orders. My understanding was that that is correct as to the dismissal of complaint without prejudice. But the difference that I saw here was that the entire action was dismissed without prejudice. That was the distinction that to me made me think that they had a cognizable interest in front of this court. And that is why I responded. It gives you, it means this is not over without prejudice means you can bring it back. So the reason it becomes in a locatory, we take an in a locatory appeal and then you go and file something, you got two actions going on here. Judge, I'm in complete agreement that Mr. Graham now has to act. The question is, Judge Duncan seems like you can see it and we can't understand. I don't know what to do about it because he hasn't served the second action. I mean, he's just gone to California and he's filed a sheet of paper and he hasn't served enough. You would say dismiss this action court because this is in a locatory. Judge Goodwin? There's case law in full circuit. It's squarely says it. That's what you would say. I asked this court to dismiss this action because it's interlocutor. And let me apologize. I didn't understand the court's inquiry. I understood it as a witness and that's why we responded as we did. Before we get too happy about dismissing, the dismissal was without prejudice for failure to timely file. This very simple plaintiff profile form does it matter for purposes of our inquiry that it can no longer

... Does it become appealable by virtue of the fact that the plaintiff profile form can no longer be timely file? I just don't know how to answer that because no effort was ever to file the plaintiff profile form. I mean, it just never occurred. I mean, the pre-trial... Before that, after it has filed a strong thing. And I think that's a fair statement and my question flowing from that is, has that failure to timely file converted for... Appearlability purposes, a dismissal without prejudice into a dismissal with prejudice. Because the condition of the dismissal has not and now cannot be met. Judge, obviously we would be advantageous to us in the litigation if we could convert that to a dismissal with prejudice. Unfortunately, I just don't think that we have any guidance from the district court that the district court would consider it that way. I would like to say yes, but I can't say that. What do you have without prejudice mean? It means to me, it means you have the ability to refile the action. And how is it different from a volunteer dismissal? If you take a volunteer dismissal before judgment, you typically have a year which you can come back. And you, the statute of limitations, doesn't run. I mean, you've got a year. You basically, you can be outside of the statute, but you've got a year to come back with your action. How is that different? Judge, I can't say that. Otherwise, it's superfluous. If you tell them without prejudice and then you come back and refile and dismiss the statute of limitations, it's with prejudice. I mean, it's got to be meaningless. I don't know what that means. I sort of looked at it as though he could come back and bring this action for the period of time, just comply with it. Judge, I think that Judge Goodwin would have, no question, Judge Goodwin would have permitted him to refile this action in federal court. But there's no questioning with it. He has permitted other people in similar situations to refile. But the terms of the dismissal seem to contemplate the time limit. Because the dismissal was without prejudice for failure to timely

. If I doesn't seem that the dismissal, I suppose they could come back in them. There's no question that they're out of time to file the PPS. There's no question. Under pre-trial order 17, it was due December 3rd. It was never filed. They never asked for it. Except for the dismissal being without prejudice. Meaning without prejudice to timely file it. No words to file it. Within whatever. I don't know what the timely file means. I mean, there's got to, bottom line is you've got a horrific case here. The question is, do you throw it out because you've got this really, really small document as Judge Keenan points out. You probably could fill it out here. And they fill out a long thing and subsequently puts it in it. From a prejudice perspective, you really want to just go ahead and try the case. Why not treat it as a refile action with a motion of men? That cures that little minor defect. Well, because it's not a dismissal on the merits, it's a dismissal for a small procedural violation of a discovery, a sanction of sort of really what it is. Yeah, and I'd like to address that at length because it sounds like a question the court's interested in on that point. I would disagree that it's a trivial document at all. I mean, these plaintiff profile forward, I mean, talk for just a second about what we have here. I mean, we've got an MDL. We have almost 13,000 cases just in our MDL. And we're one of six MDLs. We have 10 products in our MDL. That's just us, there are 10 products that issue. Now, what the plaintiffs, in this case, the plaintiff's steering committee, the court, the defendants, we all use these plaintiff profile forms for very important considerations. It's not trivial at all. That defines the universe of the cases. That tells us what is, for example, what is typical, what is representative of the cases in the MDL. That's how we make decisions in terms of what will be tried in the MDL, what will be the bellweather cases tried in the MDL. And I'm not just talking about the specific case. It doesn't matter to this plaintiff that she's the bellweather case, does it? Yes? Right. Why does it matter to Mrs. Flores? Well, what I'm talking about right now is the greater interest amongst the MDL plaintiffs. All of the plaintiffs have an interest in having cases that are representative of the claims in the MDL being tried. I mean, they're 10 different products. They're 11,000 of these, right? That is correct. And so, for example, there is a product in our MDL called a Borevo. A Borevo has a very small number of cases. I mean, you're like 100 out of 13,000. TBT has a much larger group of cases, because it's been on the market much longer. Those are, everyone uses that. Not saying it's possible that her circumstances are not represented. You don't know. You have to use the PPS to determine what is representative. Second, this is a discovery document. I mean, what Judge Goodwin has done is he has said, we don't want to have 13,000 sets of basic discovery going back and forth. And so, what he's done, as he said, this is going to be the initial set of interrogatories. And so, what the plaintiffs have done in this case is they have said, we're not going to answer the initial set of interrogatories. And I just don't understand why they would make that strategic decision not to do it, but they did it. And then they told Judge Goodwin, we're not going to do it unless you issue an order that says, for us to do it, that we would have special consideration that wouldn't be a consented jurisdiction. But that's not even the law. I mean, we pointed out to them on January 15, 2013, that that wouldn't be a consented jurisdiction. And they still don't file it. And so, Judge Goodwin's got a situation here where he has to erect some type of procedure that will permit 13,000 cases just in our MDL to go from filing to management to discovery to resolution, either resolution in the MDL or when they're sent back to the transfer records. And Judge Goodwin, it's very clear, if you look at the pre-trial order 17, he sets forth in it. What will be the sanctions and the procedures for compliance? And what he says is he says, look, if you just didn't do a line in it, there's certain procedures to cure. You know, contact the defendants will contact you. They'll ask you to make this correction. You get back to them, et cetera, et cetera. But he said, if you just don't file it, then the sanction for that would be dismissal of the case. And so, Judge Goodwin, I just want to make sure the court of stands. It's not in any way an arbitrary distinction

. It doesn't matter to this plaintiff that she's the bellweather case, does it? Yes? Right. Why does it matter to Mrs. Flores? Well, what I'm talking about right now is the greater interest amongst the MDL plaintiffs. All of the plaintiffs have an interest in having cases that are representative of the claims in the MDL being tried. I mean, they're 10 different products. They're 11,000 of these, right? That is correct. And so, for example, there is a product in our MDL called a Borevo. A Borevo has a very small number of cases. I mean, you're like 100 out of 13,000. TBT has a much larger group of cases, because it's been on the market much longer. Those are, everyone uses that. Not saying it's possible that her circumstances are not represented. You don't know. You have to use the PPS to determine what is representative. Second, this is a discovery document. I mean, what Judge Goodwin has done is he has said, we don't want to have 13,000 sets of basic discovery going back and forth. And so, what he's done, as he said, this is going to be the initial set of interrogatories. And so, what the plaintiffs have done in this case is they have said, we're not going to answer the initial set of interrogatories. And I just don't understand why they would make that strategic decision not to do it, but they did it. And then they told Judge Goodwin, we're not going to do it unless you issue an order that says, for us to do it, that we would have special consideration that wouldn't be a consented jurisdiction. But that's not even the law. I mean, we pointed out to them on January 15, 2013, that that wouldn't be a consented jurisdiction. And they still don't file it. And so, Judge Goodwin's got a situation here where he has to erect some type of procedure that will permit 13,000 cases just in our MDL to go from filing to management to discovery to resolution, either resolution in the MDL or when they're sent back to the transfer records. And Judge Goodwin, it's very clear, if you look at the pre-trial order 17, he sets forth in it. What will be the sanctions and the procedures for compliance? And what he says is he says, look, if you just didn't do a line in it, there's certain procedures to cure. You know, contact the defendants will contact you. They'll ask you to make this correction. You get back to them, et cetera, et cetera. But he said, if you just don't file it, then the sanction for that would be dismissal of the case. And so, Judge Goodwin, I just want to make sure the court of stands. It's not in any way an arbitrary distinction. He very carefully can see it. He gave it a warning. There's no question. I have absolutely. And then, our motion to dismiss, you couldn't have a more specific warning. We filed in December of 2012, we filed a document saying, you didn't do this. We have asked your case to be dismissed. And they still don't file it, even after that. You just couldn't have any. Your honors, I think Judge Goodwin did everything he could to treat Mrs. Flores fairly in this case. If the court has any more questions, I'll try to answer them. If not, I'm going to sit down. Well, before you do, I want to look at this awardor, the Judge file. And it was a request for reconsideration and reinstatement of the action. I don't know what reinstatement may be, maybe it may meant filing of the action. And in doing so, they then included this document that's more expanded than the PPF. And the Judge denies it saying, well, on the reconsideration basis, because it's not newly discovered evidence. I think that's hard not to disagree with that. I mean, that to agree with that. I mean, we've got a agreement with that. But the whole business of reinstatement goes back to, well, Judge, let us go back in action, we've now complied with this. And I guess the only hesitancy I have is if the Judge said without prejudice, what did it mean? I mean, I don't get the dismissal without prejudice. I don't know what that means. In his order, if you cannot come back and put the form in, the only thing that he dismiss before, if you can't present it and say, okay, Judge, we've complied. But if he said dismissal with prejudice, no, you can't come back and bring this on. I want to address, I think, a fundamental misconception here in that they never tried to comply. Never. I mean, never did they say to Judge Goodwin, Judge, I mean, this had happened to me. I mean, after, well, let's get to the dates right. Judge dismisses the action and then the motion for reinstatement and reconsideration has brought how much longer after it. The dismissal is on May 28th, 2013

. He very carefully can see it. He gave it a warning. There's no question. I have absolutely. And then, our motion to dismiss, you couldn't have a more specific warning. We filed in December of 2012, we filed a document saying, you didn't do this. We have asked your case to be dismissed. And they still don't file it, even after that. You just couldn't have any. Your honors, I think Judge Goodwin did everything he could to treat Mrs. Flores fairly in this case. If the court has any more questions, I'll try to answer them. If not, I'm going to sit down. Well, before you do, I want to look at this awardor, the Judge file. And it was a request for reconsideration and reinstatement of the action. I don't know what reinstatement may be, maybe it may meant filing of the action. And in doing so, they then included this document that's more expanded than the PPF. And the Judge denies it saying, well, on the reconsideration basis, because it's not newly discovered evidence. I think that's hard not to disagree with that. I mean, that to agree with that. I mean, we've got a agreement with that. But the whole business of reinstatement goes back to, well, Judge, let us go back in action, we've now complied with this. And I guess the only hesitancy I have is if the Judge said without prejudice, what did it mean? I mean, I don't get the dismissal without prejudice. I don't know what that means. In his order, if you cannot come back and put the form in, the only thing that he dismiss before, if you can't present it and say, okay, Judge, we've complied. But if he said dismissal with prejudice, no, you can't come back and bring this on. I want to address, I think, a fundamental misconception here in that they never tried to comply. Never. I mean, never did they say to Judge Goodwin, Judge, I mean, this had happened to me. I mean, after, well, let's get to the dates right. Judge dismisses the action and then the motion for reinstatement and reconsideration has brought how much longer after it. The dismissal is on May 28th, 2013. The motion to reconsider is on May 29th, 2013. So, nine days later, after the Judge says dismissal without prejudice to do something, and then they do the one thing that dismiss it within nine days and ask for reconsideration, but also for reinstatement, I don't get it. I don't understand why he didn't reinstate it. I just want to point out that they never did do the one thing. They did not do that. They did not do that. They did more than that. They got this huge document that has all of the information from this thing in it. Well, and they filed that again, I have to speculate. I mean, I have to go outside the document. Well, that's a whole different question. I mean, assume they filed the proper, they put, gave the proper document. Just assume that filed about it, and we can deal with whether or not it is in fact that. But the question I'm saying is, nine days after having dismiss without prejudice, they bring back in the very document that would you assume and ask for reinstatement. And he says, no. So what is the without prejudice? Why not? Why did it dismiss it with prejudice? Because I don't get that out. I don't know what the without prejudice means. I think if you had taken a voluntary dismissal of it as a plaintiff before any action was taken, you get a year, don't you? Come back. I'm just not sure if that's right, if the defense for you answered. I mean, if there's a voluntary dismissal in the defense, I could be wrong about that. But if the defense is answered, don't the defendants then have a say in what you can? Well, there's a procedural side of that as the weather actually needs to get sent at the other side. But rule 41, typically you can take a rule of disvolving to dismiss them. If it comes back, if it comes back. I'm only concerned with that language without prejudice. The judge said it and he didn't have to see it. And I don't know what it means. If nine days later you come back in a court with everything, because it may be a big deal to have fun, but he gave him without prejudice. He come back in there with his document and he says, no. But they still never did it. They never did that. Well, that was the assumption of the makeup. I'm saying if that expended document encompassed everything in it, that's assumed it did

. The motion to reconsider is on May 29th, 2013. So, nine days later, after the Judge says dismissal without prejudice to do something, and then they do the one thing that dismiss it within nine days and ask for reconsideration, but also for reinstatement, I don't get it. I don't understand why he didn't reinstate it. I just want to point out that they never did do the one thing. They did not do that. They did not do that. They did more than that. They got this huge document that has all of the information from this thing in it. Well, and they filed that again, I have to speculate. I mean, I have to go outside the document. Well, that's a whole different question. I mean, assume they filed the proper, they put, gave the proper document. Just assume that filed about it, and we can deal with whether or not it is in fact that. But the question I'm saying is, nine days after having dismiss without prejudice, they bring back in the very document that would you assume and ask for reinstatement. And he says, no. So what is the without prejudice? Why not? Why did it dismiss it with prejudice? Because I don't get that out. I don't know what the without prejudice means. I think if you had taken a voluntary dismissal of it as a plaintiff before any action was taken, you get a year, don't you? Come back. I'm just not sure if that's right, if the defense for you answered. I mean, if there's a voluntary dismissal in the defense, I could be wrong about that. But if the defense is answered, don't the defendants then have a say in what you can? Well, there's a procedural side of that as the weather actually needs to get sent at the other side. But rule 41, typically you can take a rule of disvolving to dismiss them. If it comes back, if it comes back. I'm only concerned with that language without prejudice. The judge said it and he didn't have to see it. And I don't know what it means. If nine days later you come back in a court with everything, because it may be a big deal to have fun, but he gave him without prejudice. He come back in there with his document and he says, no. But they still never did it. They never did that. Well, that was the assumption of the makeup. I'm saying if that expended document encompassed everything in it, that's assumed it did. I mean, we can always, I'm not giving it up. I mean, I read your point on it. Then I don't get it. Why didn't the judge really state it? Because all of it, they comply. And again, I think Judge Goodwin is attempting to do everything he can to give them a fair chance. And they're not doing that. And not asking him, not asking him for extensions to do that. They're just saying they're not going to do it. All right. Thank you. All right. Thank you very much. Judge Goodwin, the language appendix 69, and it's paragraph 15 of the original complaint. Not the subsequently filed complaint because that sort of brings it even more clear into picture. But anyway, the language at paragraph 15 states it pertinent part. Plaintless as for us suffered from S.U.I. stress urinary incontinence and or POP, pelvic organ prolapse on period. On December 29, 2003, without any notice, indication or explanation of risk. What, December what? On December 29, 2003. When the surgery happened. That's when the mesh was inserted. Yes, sir. Yes, sir. Without any notice, indication or explanation of the risks involved in being treated with a synthetic mesh product, a TVT device was placed into her pelvic cavity. And that's true, but that doesn't give you your failure to warn from the manufacturers yet. What I'm waiting for is the language that says manufacturers told us about the risks or they learned about it from being at C.L., C.M.E

. I mean, we can always, I'm not giving it up. I mean, I read your point on it. Then I don't get it. Why didn't the judge really state it? Because all of it, they comply. And again, I think Judge Goodwin is attempting to do everything he can to give them a fair chance. And they're not doing that. And not asking him, not asking him for extensions to do that. They're just saying they're not going to do it. All right. Thank you. All right. Thank you very much. Judge Goodwin, the language appendix 69, and it's paragraph 15 of the original complaint. Not the subsequently filed complaint because that sort of brings it even more clear into picture. But anyway, the language at paragraph 15 states it pertinent part. Plaintless as for us suffered from S.U.I. stress urinary incontinence and or POP, pelvic organ prolapse on period. On December 29, 2003, without any notice, indication or explanation of risk. What, December what? On December 29, 2003. When the surgery happened. That's when the mesh was inserted. Yes, sir. Yes, sir. Without any notice, indication or explanation of the risks involved in being treated with a synthetic mesh product, a TVT device was placed into her pelvic cavity. And that's true, but that doesn't give you your failure to warn from the manufacturers yet. What I'm waiting for is the language that says manufacturers told us about the risks or they learned about it from being at C.L., C.M.E., or whatever. And as a result of that, they knew that there was a danger and they didn't tell her. Now, this is when this thing was, I don't think you, if you try to hook this thing into 2003, I'm not sure 2003 is going to get you there. But if it comes somewhere after that, maybe I don't know. Well, it asked you what the allegations in the complaint. Yes. That's what we're focusing on, for your question. Okay. There is language that your honor, that aggressive marketing resulted in a large number of healthcare providers, such as doctors, share medical group hospital and dignity, purchasing, distributing, and supplying patients, such as plaintiff, Mrs. Forrest, with these synthetic mesh devices. Are you still in 15? I didn't see that. No, I'm back at paragraph 13, lines 22 through page 69, line 2. But you're still having given us anything except that they aggressively market it to them, which that's not it. There's nothing to want. What do you want, the patient? We've been aggressively marketed this mesh. There's nothing. Well, there's no risk. That's attenuated to that. Well, the risks were certainly unknown to plaintiff, the appellant. Now, had we used, I used the words going back to paragraph 15 without any warning. Which is a generic thing. What you need is specific. I understand in the California law, in fact, specific. And I know how these medical, even negligence case of medical, it really goes on to me. I know you've got to say a little bit more than failure to want. What you've got to say here is something to indicate the doctors here knew or should have known that this was bad because of XYZ. Or the manufacturers had this information that was all out there, was being taught everywhere, and they knew it had known. That's not there. What you've got is a garden variety of failure to want. That's not specific enough. On paragraph 19 of the first cause of action, we do state, and I don't know if this would suffice your, to address your concerns. Judge Wynn, but it is stated, defendants were negligent and failing to use reasonable care and a firm

., or whatever. And as a result of that, they knew that there was a danger and they didn't tell her. Now, this is when this thing was, I don't think you, if you try to hook this thing into 2003, I'm not sure 2003 is going to get you there. But if it comes somewhere after that, maybe I don't know. Well, it asked you what the allegations in the complaint. Yes. That's what we're focusing on, for your question. Okay. There is language that your honor, that aggressive marketing resulted in a large number of healthcare providers, such as doctors, share medical group hospital and dignity, purchasing, distributing, and supplying patients, such as plaintiff, Mrs. Forrest, with these synthetic mesh devices. Are you still in 15? I didn't see that. No, I'm back at paragraph 13, lines 22 through page 69, line 2. But you're still having given us anything except that they aggressively market it to them, which that's not it. There's nothing to want. What do you want, the patient? We've been aggressively marketed this mesh. There's nothing. Well, there's no risk. That's attenuated to that. Well, the risks were certainly unknown to plaintiff, the appellant. Now, had we used, I used the words going back to paragraph 15 without any warning. Which is a generic thing. What you need is specific. I understand in the California law, in fact, specific. And I know how these medical, even negligence case of medical, it really goes on to me. I know you've got to say a little bit more than failure to want. What you've got to say here is something to indicate the doctors here knew or should have known that this was bad because of XYZ. Or the manufacturers had this information that was all out there, was being taught everywhere, and they knew it had known. That's not there. What you've got is a garden variety of failure to want. That's not specific enough. On paragraph 19 of the first cause of action, we do state, and I don't know if this would suffice your, to address your concerns. Judge Wynn, but it is stated, defendants were negligent and failing to use reasonable care and a firm. Those are designing. We're talking about. In supplying and selling. But that's not. The health care providers, you're still talking about the manufacturers. No, I'm talking about all the defendants. This is against all the defendants. And she didn't walk in there with a mesh, Your Honor. They provided the hospital provided it for her. How are they negligent, how did they negligently sell? Supply and sell it because it was dangerous product, and there was a failure to warn of its dangerousness. Now, and I think we sort of hit on a nail on a head here is the standard here is no possibility under, I believe, the Hartley and the Mays case. And there's no glimmer of hope, where there is a glimmer of hope. And that's all we're looking at under the fourth circuit rules as to whether or not the remand should have been granted in the first place, and whether or not there was a fraudulent jointer. There certainly is, just the discussion here today indicates that there was at least a minimal, a glimmer of hope here for a court to at least allow amendment. In California, it's called a DEMUR, which is similar to a 12B6 motion. And there's no court that I can think of in California that would have granted a DEMUR absent without leave to a man. I mean, that's reversible per se in California. You found yourself in the fourth circuit. I do, Your Honor. I apply, you. Well, what we have here, Your Honor, is how am I to determine, and this goes to Council's comments that as to the affirmative versus defense of acts. And we pointed out to the court that we felt that an affirmative act of complying with discovery, and the defendants themselves agreed. That's at appendix 302. They said if plaintiffs, appellants would have submitted the plaintiff propliiform, it could be considered an affirmative act, waiving our right to consider. Remant back to the state court. They agreed with that. That's appendix 302. Why, if it happens all the time in litigation, you know what you're doing. You know, you know, know this as well as I do. You file it and your penal statement to this, this is filed without prejudice to the underlying action here or to the motion to remain. And we're to reserve your rights on it. Isn't that what you do? There's a case of the case

. Those are designing. We're talking about. In supplying and selling. But that's not. The health care providers, you're still talking about the manufacturers. No, I'm talking about all the defendants. This is against all the defendants. And she didn't walk in there with a mesh, Your Honor. They provided the hospital provided it for her. How are they negligent, how did they negligently sell? Supply and sell it because it was dangerous product, and there was a failure to warn of its dangerousness. Now, and I think we sort of hit on a nail on a head here is the standard here is no possibility under, I believe, the Hartley and the Mays case. And there's no glimmer of hope, where there is a glimmer of hope. And that's all we're looking at under the fourth circuit rules as to whether or not the remand should have been granted in the first place, and whether or not there was a fraudulent jointer. There certainly is, just the discussion here today indicates that there was at least a minimal, a glimmer of hope here for a court to at least allow amendment. In California, it's called a DEMUR, which is similar to a 12B6 motion. And there's no court that I can think of in California that would have granted a DEMUR absent without leave to a man. I mean, that's reversible per se in California. You found yourself in the fourth circuit. I do, Your Honor. I apply, you. Well, what we have here, Your Honor, is how am I to determine, and this goes to Council's comments that as to the affirmative versus defense of acts. And we pointed out to the court that we felt that an affirmative act of complying with discovery, and the defendants themselves agreed. That's at appendix 302. They said if plaintiffs, appellants would have submitted the plaintiff propliiform, it could be considered an affirmative act, waiving our right to consider. Remant back to the state court. They agreed with that. That's appendix 302. Why, if it happens all the time in litigation, you know what you're doing. You know, you know, know this as well as I do. You file it and your penal statement to this, this is filed without prejudice to the underlying action here or to the motion to remain. And we're to reserve your rights on it. Isn't that what you do? There's a case of the case. And after being a court's order, because you think it's going to... If you do the case law says if you take that strategy and you lose on it, you just lost. If you take that kind of strategy, but the way you would do it, I would think I was in your shoes, I would have filed it and filed it and filed it a little statement up there and says, you know, this is filed without prejudice to action a motion to remain. Which is actually considered that it does not waive any rights. I search high and low your honor for some case, even to see if that hasn't been done on a bunch of other cases. Because I've seen some cases where that's done. A lot of times you get things you file. You know you will waive a right, but you've got to comply with that order. And doing it, you comply, but you reserve the right knowing that. And that's just a procedural thing. And in a lot of those cases, your honor, the court just disregards... It doesn't matter what I say. I'm reserving my right, especially in federal court. Aren't you just conflating personal and subject matter jurisdiction anyway? I'm sorry, Your Honor. I think you're conflating personal jurisdiction and subject matter jurisdiction anyway. Yes. But yes, you are. Well, maybe I didn't understand the question. Personal jurisdiction. You are conflating the two. And you said yes. Okay, complaining. Conflating, confusing. Oh, I'm sorry. Consenting to the court's personal jurisdiction. Yes. A personal and subject matter jurisdiction. Okay

. And after being a court's order, because you think it's going to... If you do the case law says if you take that strategy and you lose on it, you just lost. If you take that kind of strategy, but the way you would do it, I would think I was in your shoes, I would have filed it and filed it and filed it a little statement up there and says, you know, this is filed without prejudice to action a motion to remain. Which is actually considered that it does not waive any rights. I search high and low your honor for some case, even to see if that hasn't been done on a bunch of other cases. Because I've seen some cases where that's done. A lot of times you get things you file. You know you will waive a right, but you've got to comply with that order. And doing it, you comply, but you reserve the right knowing that. And that's just a procedural thing. And in a lot of those cases, your honor, the court just disregards... It doesn't matter what I say. I'm reserving my right, especially in federal court. Aren't you just conflating personal and subject matter jurisdiction anyway? I'm sorry, Your Honor. I think you're conflating personal jurisdiction and subject matter jurisdiction anyway. Yes. But yes, you are. Well, maybe I didn't understand the question. Personal jurisdiction. You are conflating the two. And you said yes. Okay, complaining. Conflating, confusing. Oh, I'm sorry. Consenting to the court's personal jurisdiction. Yes. A personal and subject matter jurisdiction. Okay. I'm confusing the court with personal versus subject matter jurisdiction. I think you're... I was asking, didn't your response do so? Appearing and you were concerned that appearing was some sort of consent to... Oh, jurisdiction of the federal court. Right. I already had jurisdiction, what she's saying. So you can't... You're not prejudicing something. They already have. Right. I mean, you don't. You can't create subject matter jurisdiction. Your actions. I agree with that. But the court had not consented to subject matter jurisdiction. We waited 12 months almost to have a ruling on the remand motion. Well, I think there's law that wants something as remanded, a jurisdictional aspect of it puts it in federal court. I think that's pretty clear. And whether it goes back to the state court, there's a whole different ballgame. There's nothing in state court at that point. It puts it in the federal court procedural jurisdiction as to subject matter jurisdiction, California law would apply. I think the court would agree with that. I didn't understand that. I'm not sure that subject matter jurisdiction. I think it's the law that applies. Substitutes of law

. I'm confusing the court with personal versus subject matter jurisdiction. I think you're... I was asking, didn't your response do so? Appearing and you were concerned that appearing was some sort of consent to... Oh, jurisdiction of the federal court. Right. I already had jurisdiction, what she's saying. So you can't... You're not prejudicing something. They already have. Right. I mean, you don't. You can't create subject matter jurisdiction. Your actions. I agree with that. But the court had not consented to subject matter jurisdiction. We waited 12 months almost to have a ruling on the remand motion. Well, I think there's law that wants something as remanded, a jurisdictional aspect of it puts it in federal court. I think that's pretty clear. And whether it goes back to the state court, there's a whole different ballgame. There's nothing in state court at that point. It puts it in the federal court procedural jurisdiction as to subject matter jurisdiction, California law would apply. I think the court would agree with that. I didn't understand that. I'm not sure that subject matter jurisdiction. I think it's the law that applies. Substitutes of law. That's different. Okay. I don't want to confuse the court anymore than possible already have. But... We have enough help on that. You're honest. I think the crucial issue here is on the remand. There's clearly evidence facts before the court argument, contensions before the court that there was a possibility, presumed to our discussion here, of amending the complaint to state a cause of action. Whether we use the words that the appellate was not given notice or not given warning is immaterial. There's a possibility of a cause of action being stated here. Mr. Graham, you're again well over your time. If you could please sum up. Yep. In some, your honors, basically the sanctioned issue, and as Judge Wynn pointed out, is grossly unfair to the catastrophic, especially given the catastrophic injuries that appellate has sustained as a result of the product inserted into our pelvic cavity. I would respectfully say that the penalty issued here without prejudice, whether or not the court, this court directs the matter to be reinstated in the Southern District of West Virginia, or allows remand back to the state court of California. One of those remedies should be granted to plaintiffs to allow her and her husband to have their day in court and address the substance of the claims being presented here, rather than being dismissed on some sort of procedural misnomer. Thank you very much. Well, come down, Rick Counsel, and take a brief recess.

I'm here today to address the issues present before the court. Those issues being the denial of plaintiffs and appellants motion to remand. The discovery sanctions issued by the district court dismissing appellants case. And the abusive discretion exercised by the district court and denying reconsideration. I have to ask this is a strange procedural case. No argument there. And I'm just thinking in terms of that discovery document, the judge ordered you to provide. And you didn't do it because you said, well, I got this whole motion to remand. And I don't want it to look like we waved and, you know, all right. All well and good. Well, any rules on the remand and you still don't file it. I don't get it. And then when you do, when then ultimately you get a dismissal without prejudice, which I assume without prejudice to refile, including the document. I don't know if that's what it is. I hadn't thought about the statute of limitations on it, but it's without prejudice. And you still don't do that. What you do is you bring the doc, you do a document that's more inclusive, include all that information. And then you bring in a motion to reconsider based on newly discovered evidence. There's not newly discovered at all there. It was already there. So I can't understand the procedural posture of it. Why didn't you move to a man and refile it? It seems like that would have cured it. A wood... There was an additional question presented to the court as to mootness. And that was addressed by supplemental creepy... Well, Ms. Don't lose me, because sometimes I'm kind of thinking procedure in terms of court tells you you can dismissing with those wonderful magic words without prejudice. And all you have that you have to do is do that document. And you still didn't do it. I mean, you come back and you say motion for reconsideration. And I'm... It's dismissed. And so I guess you're trying to get them to bring it back on instead of filing again. We did file again. In California. Correct. Yes. Is that... That's where it all started. Well, if you've filed again, then what is here? What is here, Your Honor, is the original case, not the subsequently filed case, should have been... You filed to comply when the judge says dismissed without prejudice. You then complied by refiling. Is that what you're saying? It was without prejudice and we refiled. So what is here? In California. In California. In California, but it's refiled. You say you're complying with it and that can be removed to the federal court too possibly. So I mean, I don't get it. Whether or not you filed, your contention is you refiled. In compliance with the order that says your case is dismissed without prejudice. So you then refiled. Is that your signature? No. I didn't understand that. Well, let me make sure I understand this because this is central to my understanding. It's because procedurally it is. I did a little litigating. I don't quite understand this one. It is intriguing. So you refiled the California action that had been removed to federal court. I refiled a new action. Totally new action. Has nothing to do with this one. New case number. I'm not going to say that the facts are not the same, but the facts and the allegations are the same. So I will turn this a loose on this because I just want to make sure I understand. Yeah, I want to win you. But let me make sure I understand this question. Sure. When you refiled in California, you are not doing so in compliance with or as a response to the district court's order that you it is dismissed without prejudice to refile. That's not what you were doing in California. There was no order to refile your honor without prejudice. Right. Because without prejudice, we I refiled in California, in the California state court. Well, now she's my question differently. Now you're saying you did it because you gave you without prejudice, so you refiled. Yes. So what's here? What's here? If you refiled it there in compliance with what are you doing now? Okay. Can I answer your question, your honor? Yes. Okay. So what's going to happen here, your honor, on the new case? That's been refiled in California. And as your honor just pointed out, more likely than not, it's going to get removed. It's going to get removed to the United States District Court for the Central District of California. At the con is then going to file the MDL transfer order and it's going to be transferred back to the Southern District of West Virginia. What if we grant you the relief today that you asked for? That is reconsider and bring the one that you already got in federal court. Do you then have two lawsuits? No, I dismiss the... Oh, you're not going to tell anyone now. Then you're going to dismiss the one you just refiled and then keep the one you got. Exactly. Yes, we were dis... It hasn't been served. Now, Ethicon has brought it up here, but it's not part of the record before this court. They've brought it up because they are aware of it. And I'll leave it as the problem it seems to me. When your case was dismissed, you had only one problem. Wasn't that your pleadings weren't good? Wasn't anything else? Your problem was you hadn't filed that discovery device. And this is a federal case. All right, and you already told you you lost the one for remanding so you can't remand. Nothing to be remand. You've lost that. And unless you appeal it, you just can't remand that case. And it is the strangest thing in the world. If you go back to California and file the same action that he told you, you can't remand. So you go back and just refile it. And you're saying you're not filing it based upon the dismissal without prejudice. You seek a motion to reconsider on newly discovered evidence when there's nothing newly discovered about that document that you could have filed before. In fact, you could have filed it after they judge rule that you can't remand it. But you didn't. You didn't get until it was dismissed. Then you filed something that was more expansive. And it is the strangest procedural thing I have seen. But you know- You're just seeking statute of limitations insurance, aren't you? Isn't that what it comes down to? The prejudice, yeah, that will resolve- That's what this is all about. Right. Exactly. I mean, if this court does not grant the relief- Right. I understand full of the statute of limitations, implications of this, that without prejudice aspect of it, it's something that I'm just thinking, why didn't you keep this thing alive and federal court by simply following that document, moving to a man and asked the court to just treat this as an amendment and allow your action to go forward because you now complied with the only thing that resulted into dismissal. Wasn't a sufficiency of the pleading, wasn't anything else. It wasn't dismissed on a substantive ground. Was that one little thing? And you just didn't. He's got thousands of these cases. So I can't imagine he's all carrying one of- Well, if one stays or not. Well, there's multiple questions there and issues that the court judge when you brought up. But you had 40 days if you could add that into the question pot. Why in the world did you sit around for 40 days after you had your ruling form Judge Goodwin and not file the form, not seek to amend your complaint? Judge Goodwin had identified the problem. If you could add that to Judge Goodwin's question. Petra- pretrial conference pretrial order 17. Basically gives 60 days from the date that the short form complaint, not to confuse the things, but 60 days from the filing of a short form complaint, to file the plaintiff's profile form, the PPF. During the 40-day period between the court's order on remand and the court's dismissal order, again, keeping in mind the dismissal motion was filed in December of 2012. The motion for remand or the remand, the motion for remand was filed in May of 2012. The remand was denied on April 10, 2013. The dismissal was granted on May 20, 2013. Reconciteration was denied on June 18, 2013. So, to answer Judge Goodwin's question, there was 60 days that I believe, from the point in time that the court more or less acquired jurisdiction, because plaintiffs had waited almost a year to get a ruling on their motion to remand. The motion to remand was incorrectly ruled upon by- I'm briefly- why is that? Briefly. Thank you for the question, Judge Adonkan. The court principally relied upon a case which is not published, but is found on West love, just as versus branch baking and banking and trust company. That case, they cite Indicta only a case of Jernigan, which stands for the proposition that fraudulent jointer cases do not have- I am low to interrupt you, given that you've had very little time for your argument, but it's precisely because I'd like to get to a direct answer that I'm doing. So, please excuse me. Why wasn't the district court correct in holding that the California defendants were fraudulently joined? Because as I understand it, California is a fact- pleading state, and the complaint doesn't allege that the healthcare providers had knowledge that the device was unreasonably dangerous. In fact, the brief is replete with references to the fact that the plaintiff doesn't know what, if anything, the California did it's new about the risks of the device. So, why wasn't without challenging its reliance on unpublished precedent, why wasn't the district court independently correct in holding that the complaint doesn't state a cause of act, a claim, a connoisseable claim against them? Because- What relief could you obtain? Are you the warn? And California does recognize a failure to warn? They do recognize a failure to warn, but your complaint does allege that they had knowledge, which would have to be- which would be the basis of a failure to warn. You don't allege that they were aware that the device was unreasonably dangerous, that they knew about the risks of the device. Or that they should have known. Or that they should have known. And Judge Goodwin identified this defect for you, and yet you still didn't try to amend. In- Well, in response to Judge Duncan's case and- or question, I'm sorry- Tressimer, the case cited in our brief, not only requires healthcare providers to provide notice and warning before services provided, but also after services provided. So the- The failure to warn cause of action would- would be applicable and should have been allowed to- have been amended. Now you're saying I should have moved to amend the complaint. And that would have- I'm a little bit concerned about Judge Goodwin's question. That would have alleviated the problem and of remand. I- I don't think that at that point, your honor, after remand was denied that we could- at that point seek to amend or appeal the remand order. What we could do is- comply with pretrial conference order getting back to Judge Keynan's- question of- Providing the documents requested. And during that 40-day period, and I hope I'm answering Judge Duncan's question too- during that 40-day period, we compiled and marshaled together as much information as we could. There was multiple treating doctors involved in records that had to be acquired to provide the information requested. You know, it's funny though, you filed a really long form that you didn't file the short one. We didn't because- This- this profile form is really- I mean, it's almost something I could fill out for you based on my knowledge of the record. And yet you filed the much more detailed one. Because your honor, we wanted- We did not want any of the defendants in this action to be prejudice. This would have been and could have been, and I believe that's one of the- prejudices that's being argued by Ethicon, is that they would deprive the opportunity to have this be included in a bill whether- one of the bill-weather cases. So if they wanted this into- as one of the bill-weather cases, there's certainly no objection on a pellets part to have it included. So I wanted them to have as much information as they possibly could. We had 60 days from the point in time that the court exercised jurisdiction. We'd waited almost a year for the ruling, the ruling came down. The ruling was incorrect in getting back to Judge Duncan's question. And I'm sort of going beyond my time here, but I do want that answered. Excuse me. You do have some time for a bottle. So if you want it to briefly conclude, you can follow up for a bottle. Let me ask you on that failure to warn. Is it the position that you would have to establish that the failure to a one was known in 2003 at the time of the surgery? Or is there some continuing duty to warn that you are a surly? In California, in California under Tressimer, which is still good law, there is a continuing duty on the part of the healthcare providers to warn. And to continue to warn post-service. So five years after having put this in, they get information that there's a real problem here. There's a duty in California to warn a patient that you've installed one of these measures in. That gets into the learned intermediary theory. And what that means is basically ethical and sends a letter to the healthcare providers. And again, keep in mind the healthcare providers are not here, do not join in the motion. Filed an answer. And anyway, getting back to Judge Wins' question. Yes, they do have an obligation to continue. They get a letter. The problem with the problem with that is you did in your brief, you did indicate that you have no reason to know whether they knew of the risks after the fact either. It seems to you pretty much acknowledge that claim out of existence by saying you have no basis to suggest that they knew of the risk either before or after the fact. They knew after. They had to know after. At some point. But you brief indicates a lack of knowledge on your part of that. On the part of the appellate. Whether the healthcare providers, the defendant and healthcare providers knew of the risk after the fact. After the fact of the operations. We alleged that they failed to give notice. Now whether or not we would have. It would have been more appropriate to say there was a lack of warning or failure to warn or a failure to notice. That does not give rise to sufficient support to dismiss plaintiffs claim without an opportunity to address the merits of her case. The procedural aspects of this case are just a total violation of due process here. Did you have a question or do you want me to wrap it up? No, thank you. I think I would appreciate it if you would follow up on rebuttal. Okay, well do. Thank you. It would be good when you come back if you point to that specific language in the complaint that you say establish that allegation just done. Well do you. Well do. Mr. Combs. May it please the court on Phil Combs. I'm here on behalf of Bethacan and Johnson and Johnson. I want to start by addressing the fraudulent joint analysis because obviously the court didn't have jurisdiction. We don't get to the motion to dismiss. Your honors. I just don't know what more judge good one could have done in this case. I mean this claim that we're now talking about about a negligent post implantation duty to warn is something that's not even in the complaint. And it's just there's no mention of it. What do you think about complaints in a liberal way when you make an allegation? Those are the kinds of things you can develop on summary judgment and some things you maybe sometimes you do it on information and believe. But to state a fade of wine you do look at the state law. And if the state law encompasses a broader concept of fade of wine has seemed to be alleged years that here the California has a broader concept of a fade of wine it encompasses it. Seems to make sense. I mean you put a message in someone and you find out three or four years later that that thing is really really bad. Do you have a duty then to call up the patient says you got something that's going to explode on you or cause a problem. You need to come back in or do you just say well we did that we didn't know that back in 2003 and that's all well and good. Well let me let me address this. So it's a liberal pleading aspect of it if there's language that will support that that seems to might be a way to give some pause on that. Well I have several several responses now. First California is in fact a fact pleading state that set forth a California procedural code for two five point ten a one and it's mandatory. It says the complaint shall contain a concise statement of the facts that support the cause of action. The second thing is there is no allegation at all made in this complaint regarding a failure to want to claim. I mean there's nothing said that risk for you. That's the key. That's why I asked to put it to come back and show it to us and you can answer Judge Duckett's question if it's not in there then no need for us to talk about. And it's just absolutely not in there and the additional point I want to make is never was Judge Goodwin asked to consider an amendment to the complaint. I mean Judge Goodwin did everything he could do to give Mrs. Forrest a fair day in court. And what he did is under this court's rulings in May's V. Ramp report and AIDS Clinic and testing centers is he said I'm not just going to look at the complaint. I'm not just going to look at those allegations. I'm going to look at the entire record. And on April 10, 2013 when he decided this remand motion there was nothing in the record that would support that the doctor knew of this should have known of this and under the Tressimer case. So again I just want to reinforce we're talking about Judge Goodwin considering something that the plaintiffs had never even raised in an effort to be as fair as he could to this plaintiff. But if we're now talking about the Tressimer case which is the only issue that they're arguing on appeal. They're saying Judge Goodwin got this wrong this issue we didn't raise but he got it wrong. But if we go to the Tressimer case it requires actual knowledge. There is a case in California it's Tressimer and Tressimer says that under certain circumstances you may have a post-implantation duty to warrant. It's not an absolute duty. I mean but I do agree that there is that potential cause of action. But what Tressimer says is that you would have to have actual knowledge of the risk. And there's not a single fact alleged in this record anywhere that the doctor had actual knowledge or should have had. Under Tressimer he's got to have actual knowledge. It's just flat out not there. And the appellate will not be able to point that it is there because it was nothing was ever given to Judge Goodwin that would say this doctor had actual knowledge of this post-implantation risk. So we have the motion to remain we'll discuss in that and that's from a perspective to determine whether we even get to the motion to dismiss. But the motion to dismiss is without prejudice and typically we've considered that to be in a locatory. So why is there no discussion of that? I mean, even more puzzling why didn't you support when we asked for supplemental response on that you seem to concede on it? Well it's possible that I'm wrong on it or it's possible that I don't understand the court's question. And I assess the court's inquiry on that as a question regarding movements. Did this additional follow on action that they filed in California, moot this appeal? And that was how I assess. Okay, well put the way, put the way my I see it as a question of appealability. As Judge Goodwin said, dismissals without prejudice are generally not appealable. They're not final orders. My understanding was that that is correct as to the dismissal of complaint without prejudice. But the difference that I saw here was that the entire action was dismissed without prejudice. That was the distinction that to me made me think that they had a cognizable interest in front of this court. And that is why I responded. It gives you, it means this is not over without prejudice means you can bring it back. So the reason it becomes in a locatory, we take an in a locatory appeal and then you go and file something, you got two actions going on here. Judge, I'm in complete agreement that Mr. Graham now has to act. The question is, Judge Duncan seems like you can see it and we can't understand. I don't know what to do about it because he hasn't served the second action. I mean, he's just gone to California and he's filed a sheet of paper and he hasn't served enough. You would say dismiss this action court because this is in a locatory. Judge Goodwin? There's case law in full circuit. It's squarely says it. That's what you would say. I asked this court to dismiss this action because it's interlocutor. And let me apologize. I didn't understand the court's inquiry. I understood it as a witness and that's why we responded as we did. Before we get too happy about dismissing, the dismissal was without prejudice for failure to timely file. This very simple plaintiff profile form does it matter for purposes of our inquiry that it can no longer... Does it become appealable by virtue of the fact that the plaintiff profile form can no longer be timely file? I just don't know how to answer that because no effort was ever to file the plaintiff profile form. I mean, it just never occurred. I mean, the pre-trial... Before that, after it has filed a strong thing. And I think that's a fair statement and my question flowing from that is, has that failure to timely file converted for... Appearlability purposes, a dismissal without prejudice into a dismissal with prejudice. Because the condition of the dismissal has not and now cannot be met. Judge, obviously we would be advantageous to us in the litigation if we could convert that to a dismissal with prejudice. Unfortunately, I just don't think that we have any guidance from the district court that the district court would consider it that way. I would like to say yes, but I can't say that. What do you have without prejudice mean? It means to me, it means you have the ability to refile the action. And how is it different from a volunteer dismissal? If you take a volunteer dismissal before judgment, you typically have a year which you can come back. And you, the statute of limitations, doesn't run. I mean, you've got a year. You basically, you can be outside of the statute, but you've got a year to come back with your action. How is that different? Judge, I can't say that. Otherwise, it's superfluous. If you tell them without prejudice and then you come back and refile and dismiss the statute of limitations, it's with prejudice. I mean, it's got to be meaningless. I don't know what that means. I sort of looked at it as though he could come back and bring this action for the period of time, just comply with it. Judge, I think that Judge Goodwin would have, no question, Judge Goodwin would have permitted him to refile this action in federal court. But there's no questioning with it. He has permitted other people in similar situations to refile. But the terms of the dismissal seem to contemplate the time limit. Because the dismissal was without prejudice for failure to timely. If I doesn't seem that the dismissal, I suppose they could come back in them. There's no question that they're out of time to file the PPS. There's no question. Under pre-trial order 17, it was due December 3rd. It was never filed. They never asked for it. Except for the dismissal being without prejudice. Meaning without prejudice to timely file it. No words to file it. Within whatever. I don't know what the timely file means. I mean, there's got to, bottom line is you've got a horrific case here. The question is, do you throw it out because you've got this really, really small document as Judge Keenan points out. You probably could fill it out here. And they fill out a long thing and subsequently puts it in it. From a prejudice perspective, you really want to just go ahead and try the case. Why not treat it as a refile action with a motion of men? That cures that little minor defect. Well, because it's not a dismissal on the merits, it's a dismissal for a small procedural violation of a discovery, a sanction of sort of really what it is. Yeah, and I'd like to address that at length because it sounds like a question the court's interested in on that point. I would disagree that it's a trivial document at all. I mean, these plaintiff profile forward, I mean, talk for just a second about what we have here. I mean, we've got an MDL. We have almost 13,000 cases just in our MDL. And we're one of six MDLs. We have 10 products in our MDL. That's just us, there are 10 products that issue. Now, what the plaintiffs, in this case, the plaintiff's steering committee, the court, the defendants, we all use these plaintiff profile forms for very important considerations. It's not trivial at all. That defines the universe of the cases. That tells us what is, for example, what is typical, what is representative of the cases in the MDL. That's how we make decisions in terms of what will be tried in the MDL, what will be the bellweather cases tried in the MDL. And I'm not just talking about the specific case. It doesn't matter to this plaintiff that she's the bellweather case, does it? Yes? Right. Why does it matter to Mrs. Flores? Well, what I'm talking about right now is the greater interest amongst the MDL plaintiffs. All of the plaintiffs have an interest in having cases that are representative of the claims in the MDL being tried. I mean, they're 10 different products. They're 11,000 of these, right? That is correct. And so, for example, there is a product in our MDL called a Borevo. A Borevo has a very small number of cases. I mean, you're like 100 out of 13,000. TBT has a much larger group of cases, because it's been on the market much longer. Those are, everyone uses that. Not saying it's possible that her circumstances are not represented. You don't know. You have to use the PPS to determine what is representative. Second, this is a discovery document. I mean, what Judge Goodwin has done is he has said, we don't want to have 13,000 sets of basic discovery going back and forth. And so, what he's done, as he said, this is going to be the initial set of interrogatories. And so, what the plaintiffs have done in this case is they have said, we're not going to answer the initial set of interrogatories. And I just don't understand why they would make that strategic decision not to do it, but they did it. And then they told Judge Goodwin, we're not going to do it unless you issue an order that says, for us to do it, that we would have special consideration that wouldn't be a consented jurisdiction. But that's not even the law. I mean, we pointed out to them on January 15, 2013, that that wouldn't be a consented jurisdiction. And they still don't file it. And so, Judge Goodwin's got a situation here where he has to erect some type of procedure that will permit 13,000 cases just in our MDL to go from filing to management to discovery to resolution, either resolution in the MDL or when they're sent back to the transfer records. And Judge Goodwin, it's very clear, if you look at the pre-trial order 17, he sets forth in it. What will be the sanctions and the procedures for compliance? And what he says is he says, look, if you just didn't do a line in it, there's certain procedures to cure. You know, contact the defendants will contact you. They'll ask you to make this correction. You get back to them, et cetera, et cetera. But he said, if you just don't file it, then the sanction for that would be dismissal of the case. And so, Judge Goodwin, I just want to make sure the court of stands. It's not in any way an arbitrary distinction. He very carefully can see it. He gave it a warning. There's no question. I have absolutely. And then, our motion to dismiss, you couldn't have a more specific warning. We filed in December of 2012, we filed a document saying, you didn't do this. We have asked your case to be dismissed. And they still don't file it, even after that. You just couldn't have any. Your honors, I think Judge Goodwin did everything he could to treat Mrs. Flores fairly in this case. If the court has any more questions, I'll try to answer them. If not, I'm going to sit down. Well, before you do, I want to look at this awardor, the Judge file. And it was a request for reconsideration and reinstatement of the action. I don't know what reinstatement may be, maybe it may meant filing of the action. And in doing so, they then included this document that's more expanded than the PPF. And the Judge denies it saying, well, on the reconsideration basis, because it's not newly discovered evidence. I think that's hard not to disagree with that. I mean, that to agree with that. I mean, we've got a agreement with that. But the whole business of reinstatement goes back to, well, Judge, let us go back in action, we've now complied with this. And I guess the only hesitancy I have is if the Judge said without prejudice, what did it mean? I mean, I don't get the dismissal without prejudice. I don't know what that means. In his order, if you cannot come back and put the form in, the only thing that he dismiss before, if you can't present it and say, okay, Judge, we've complied. But if he said dismissal with prejudice, no, you can't come back and bring this on. I want to address, I think, a fundamental misconception here in that they never tried to comply. Never. I mean, never did they say to Judge Goodwin, Judge, I mean, this had happened to me. I mean, after, well, let's get to the dates right. Judge dismisses the action and then the motion for reinstatement and reconsideration has brought how much longer after it. The dismissal is on May 28th, 2013. The motion to reconsider is on May 29th, 2013. So, nine days later, after the Judge says dismissal without prejudice to do something, and then they do the one thing that dismiss it within nine days and ask for reconsideration, but also for reinstatement, I don't get it. I don't understand why he didn't reinstate it. I just want to point out that they never did do the one thing. They did not do that. They did not do that. They did more than that. They got this huge document that has all of the information from this thing in it. Well, and they filed that again, I have to speculate. I mean, I have to go outside the document. Well, that's a whole different question. I mean, assume they filed the proper, they put, gave the proper document. Just assume that filed about it, and we can deal with whether or not it is in fact that. But the question I'm saying is, nine days after having dismiss without prejudice, they bring back in the very document that would you assume and ask for reinstatement. And he says, no. So what is the without prejudice? Why not? Why did it dismiss it with prejudice? Because I don't get that out. I don't know what the without prejudice means. I think if you had taken a voluntary dismissal of it as a plaintiff before any action was taken, you get a year, don't you? Come back. I'm just not sure if that's right, if the defense for you answered. I mean, if there's a voluntary dismissal in the defense, I could be wrong about that. But if the defense is answered, don't the defendants then have a say in what you can? Well, there's a procedural side of that as the weather actually needs to get sent at the other side. But rule 41, typically you can take a rule of disvolving to dismiss them. If it comes back, if it comes back. I'm only concerned with that language without prejudice. The judge said it and he didn't have to see it. And I don't know what it means. If nine days later you come back in a court with everything, because it may be a big deal to have fun, but he gave him without prejudice. He come back in there with his document and he says, no. But they still never did it. They never did that. Well, that was the assumption of the makeup. I'm saying if that expended document encompassed everything in it, that's assumed it did. I mean, we can always, I'm not giving it up. I mean, I read your point on it. Then I don't get it. Why didn't the judge really state it? Because all of it, they comply. And again, I think Judge Goodwin is attempting to do everything he can to give them a fair chance. And they're not doing that. And not asking him, not asking him for extensions to do that. They're just saying they're not going to do it. All right. Thank you. All right. Thank you very much. Judge Goodwin, the language appendix 69, and it's paragraph 15 of the original complaint. Not the subsequently filed complaint because that sort of brings it even more clear into picture. But anyway, the language at paragraph 15 states it pertinent part. Plaintless as for us suffered from S.U.I. stress urinary incontinence and or POP, pelvic organ prolapse on period. On December 29, 2003, without any notice, indication or explanation of risk. What, December what? On December 29, 2003. When the surgery happened. That's when the mesh was inserted. Yes, sir. Yes, sir. Without any notice, indication or explanation of the risks involved in being treated with a synthetic mesh product, a TVT device was placed into her pelvic cavity. And that's true, but that doesn't give you your failure to warn from the manufacturers yet. What I'm waiting for is the language that says manufacturers told us about the risks or they learned about it from being at C.L., C.M.E., or whatever. And as a result of that, they knew that there was a danger and they didn't tell her. Now, this is when this thing was, I don't think you, if you try to hook this thing into 2003, I'm not sure 2003 is going to get you there. But if it comes somewhere after that, maybe I don't know. Well, it asked you what the allegations in the complaint. Yes. That's what we're focusing on, for your question. Okay. There is language that your honor, that aggressive marketing resulted in a large number of healthcare providers, such as doctors, share medical group hospital and dignity, purchasing, distributing, and supplying patients, such as plaintiff, Mrs. Forrest, with these synthetic mesh devices. Are you still in 15? I didn't see that. No, I'm back at paragraph 13, lines 22 through page 69, line 2. But you're still having given us anything except that they aggressively market it to them, which that's not it. There's nothing to want. What do you want, the patient? We've been aggressively marketed this mesh. There's nothing. Well, there's no risk. That's attenuated to that. Well, the risks were certainly unknown to plaintiff, the appellant. Now, had we used, I used the words going back to paragraph 15 without any warning. Which is a generic thing. What you need is specific. I understand in the California law, in fact, specific. And I know how these medical, even negligence case of medical, it really goes on to me. I know you've got to say a little bit more than failure to want. What you've got to say here is something to indicate the doctors here knew or should have known that this was bad because of XYZ. Or the manufacturers had this information that was all out there, was being taught everywhere, and they knew it had known. That's not there. What you've got is a garden variety of failure to want. That's not specific enough. On paragraph 19 of the first cause of action, we do state, and I don't know if this would suffice your, to address your concerns. Judge Wynn, but it is stated, defendants were negligent and failing to use reasonable care and a firm. Those are designing. We're talking about. In supplying and selling. But that's not. The health care providers, you're still talking about the manufacturers. No, I'm talking about all the defendants. This is against all the defendants. And she didn't walk in there with a mesh, Your Honor. They provided the hospital provided it for her. How are they negligent, how did they negligently sell? Supply and sell it because it was dangerous product, and there was a failure to warn of its dangerousness. Now, and I think we sort of hit on a nail on a head here is the standard here is no possibility under, I believe, the Hartley and the Mays case. And there's no glimmer of hope, where there is a glimmer of hope. And that's all we're looking at under the fourth circuit rules as to whether or not the remand should have been granted in the first place, and whether or not there was a fraudulent jointer. There certainly is, just the discussion here today indicates that there was at least a minimal, a glimmer of hope here for a court to at least allow amendment. In California, it's called a DEMUR, which is similar to a 12B6 motion. And there's no court that I can think of in California that would have granted a DEMUR absent without leave to a man. I mean, that's reversible per se in California. You found yourself in the fourth circuit. I do, Your Honor. I apply, you. Well, what we have here, Your Honor, is how am I to determine, and this goes to Council's comments that as to the affirmative versus defense of acts. And we pointed out to the court that we felt that an affirmative act of complying with discovery, and the defendants themselves agreed. That's at appendix 302. They said if plaintiffs, appellants would have submitted the plaintiff propliiform, it could be considered an affirmative act, waiving our right to consider. Remant back to the state court. They agreed with that. That's appendix 302. Why, if it happens all the time in litigation, you know what you're doing. You know, you know, know this as well as I do. You file it and your penal statement to this, this is filed without prejudice to the underlying action here or to the motion to remain. And we're to reserve your rights on it. Isn't that what you do? There's a case of the case. And after being a court's order, because you think it's going to... If you do the case law says if you take that strategy and you lose on it, you just lost. If you take that kind of strategy, but the way you would do it, I would think I was in your shoes, I would have filed it and filed it and filed it a little statement up there and says, you know, this is filed without prejudice to action a motion to remain. Which is actually considered that it does not waive any rights. I search high and low your honor for some case, even to see if that hasn't been done on a bunch of other cases. Because I've seen some cases where that's done. A lot of times you get things you file. You know you will waive a right, but you've got to comply with that order. And doing it, you comply, but you reserve the right knowing that. And that's just a procedural thing. And in a lot of those cases, your honor, the court just disregards... It doesn't matter what I say. I'm reserving my right, especially in federal court. Aren't you just conflating personal and subject matter jurisdiction anyway? I'm sorry, Your Honor. I think you're conflating personal jurisdiction and subject matter jurisdiction anyway. Yes. But yes, you are. Well, maybe I didn't understand the question. Personal jurisdiction. You are conflating the two. And you said yes. Okay, complaining. Conflating, confusing. Oh, I'm sorry. Consenting to the court's personal jurisdiction. Yes. A personal and subject matter jurisdiction. Okay. I'm confusing the court with personal versus subject matter jurisdiction. I think you're... I was asking, didn't your response do so? Appearing and you were concerned that appearing was some sort of consent to... Oh, jurisdiction of the federal court. Right. I already had jurisdiction, what she's saying. So you can't... You're not prejudicing something. They already have. Right. I mean, you don't. You can't create subject matter jurisdiction. Your actions. I agree with that. But the court had not consented to subject matter jurisdiction. We waited 12 months almost to have a ruling on the remand motion. Well, I think there's law that wants something as remanded, a jurisdictional aspect of it puts it in federal court. I think that's pretty clear. And whether it goes back to the state court, there's a whole different ballgame. There's nothing in state court at that point. It puts it in the federal court procedural jurisdiction as to subject matter jurisdiction, California law would apply. I think the court would agree with that. I didn't understand that. I'm not sure that subject matter jurisdiction. I think it's the law that applies. Substitutes of law. That's different. Okay. I don't want to confuse the court anymore than possible already have. But... We have enough help on that. You're honest. I think the crucial issue here is on the remand. There's clearly evidence facts before the court argument, contensions before the court that there was a possibility, presumed to our discussion here, of amending the complaint to state a cause of action. Whether we use the words that the appellate was not given notice or not given warning is immaterial. There's a possibility of a cause of action being stated here. Mr. Graham, you're again well over your time. If you could please sum up. Yep. In some, your honors, basically the sanctioned issue, and as Judge Wynn pointed out, is grossly unfair to the catastrophic, especially given the catastrophic injuries that appellate has sustained as a result of the product inserted into our pelvic cavity. I would respectfully say that the penalty issued here without prejudice, whether or not the court, this court directs the matter to be reinstated in the Southern District of West Virginia, or allows remand back to the state court of California. One of those remedies should be granted to plaintiffs to allow her and her husband to have their day in court and address the substance of the claims being presented here, rather than being dismissed on some sort of procedural misnomer. Thank you very much. Well, come down, Rick Counsel, and take a brief recess