Victoria Looper v. Cook Incorporated ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3103
VICTORIA LOOPER,
Plaintiff-Appellant,
v.
COOK INCORPORATED, et al.,
Defendants-Appellees.
____________________
No. 20-3104
SAMMIE LAMBERT,
Plaintiff-Appellant,
v.
COOK INCORPORATED, et al.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
Nos. 1:16-cv-03510 & 1:19-cv-02561 — Richard L. Young, Judge.
____________________
ARGUED SEPTEMBER 9, 2021 — DECIDED DECEMBER 16, 2021
____________________
2 Nos. 20-3103 & 20-3104
Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.
HAMILTON, Circuit Judge. These two consolidated appeals
raise issues about how the common practice of “direct filing”
in multidistrict litigation may affect the choice of law in indi-
vidual cases within the larger MDL. The Judicial Panel on
Multidistrict Litigation asked Judge Richard L. Young of the
Southern District of Indiana to oversee a multidistrict litiga-
tion docket to coordinate discovery and other pretrial pro-
ceedings in thousands of medical product-liability suits
against Cook Incorporated and related entities alleging that
Cook’s inferior vena cava (IVC) filters were defective. See 28
U.S.C. § 1407.
The court and the parties agreed in practice to a procedure
by which new plaintiffs could join the MDL by filing directly
in the Southern District of Indiana rather than filing in their
home districts and waiting for the judiciary’s administrative
machinery to transfer their cases to the MDL in the Southern
District of Indiana. As we explain below, the choice between
such direct filing and waiting for a transfer may affect the
choice of law in the case, among other legal issues.
In these appeals, plaintiffs Victoria Looper and Sammie
Lambert filed their lawsuits directly in the MDL court in In-
diana rather than filing in the states where they lived and had
the IVC filters implanted and then waiting for their cases to
be “tagged” and transferred by the Judicial Panel on Multi-
district Litigation. Cook moved to dismiss both cases based
on Indiana’s two-year statute of limitations for personal in-
jury actions. Looper’s and Lambert’s home states (South Car-
olina and Mississippi) have three-year statutes. If the South
Carolina and Mississippi statutes apply, their cases were
timely. If the Indiana statute governs, as Cook argues and the
Nos. 20-3103 & 20-3104 3
district court held, Looper and Lambert filed their cases too
late.
The appeals raise questions that have broad implications
for MDL courts that endorse direct filing for the sake of effi-
ciency. The dispute here shows the need for care and clarity
up front in adopting direct filing. In these appeals, however,
we do not need to reach sweeping conclusions on the subject.
The unusual course of events in the district court—on this is-
sue, first Cook and then the district court changed course 180
degrees in the midst of the MDL—showed that Cook implic-
itly consented to using choice-of-law rules for these plaintiffs
as if they had filed in their home states. The district court
might well have discretion to allow Cook to change positions
prospectively, but it was not fair to allow Cook to change po-
sitions retroactively to dismiss these plaintiffs’ cases that had
been timely filed under what the district court had accurately
called the “law of the case.” We therefore reverse the judg-
ments in favor of Cook in these two appeals and remand for
further proceedings in the district court.
To explain our decision, we first lay out the governing le-
gal principles for choice of law in diversity-jurisdiction cases
that are transferred, and then the basics of multidistrict litiga-
tion and the practice of direct filing. We then turn to the unu-
sual course of relevant events that persuades us that Cook
consented to using home-state choice-of-law principles for
these cases filed directly in the MDL venue.
I. Legal Standards
A. General Choice-of-Law Rules
We start with first principles. Absent the parties’ consent
to a different approach, a federal court exercising its diversity
4 Nos. 20-3103 & 20-3104
jurisdiction over state-law claims ordinarily applies the
choice-of-law rules of the state in which it sits. Klaxon Co. v.
Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941).
When a district court with proper venue transfers a civil case
to another district court, the transferee court will apply the
choice-of-law rules of the state where the transferor court sits.
Van Dusen v. Barrack, 376 U.S. 612, 639 (1964) (“A change of
venue under [28 U.S.C. § 1404(a)] generally should be, with
respect to state law, but a change of courtrooms.”). We review
de novo a district court’s choice of law. Auto-Owners Insurance
Co. v. Websolv Computing, Inc., 580 F.3d 543, 546 (7th Cir. 2009).
B. Choice of Law in MDLs
The path a diversity-jurisdiction case takes to join a multi-
district litigation can affect which state’s choice-of-law princi-
ples govern the dispute. Take so-called “tag-along” actions.
There, a plaintiff files a case that shares a common question of
fact with the cases that are already part of the multidistrict
litigation, but files in a district other than the MDL court. After
the Judicial Panel on Multidistrict Litigation is notified of the
case, the Panel then “tags” it as part of the MDL and transfers
it to the transferee judge for all pretrial proceedings, barring
any successful objections. See 28 U.S.C. § 1407(a) & (c); An-
drew D. Bradt, The Shortest Distance: Direct Filing and Choice of
Law in Multidistrict Litigation, 88 Notre Dame L. Rev. 759, 795
(2012). Importantly, a tagged case preserves the choice-of-law
rules of its originating jurisdiction. Chang v. Baxter Healthcare
Corp., 599 F.3d 728, 732 (7th Cir. 2010) (collecting cases apply-
ing Klaxon and Van Dusen in MDLs).
A different path for plaintiffs may be to file directly in the
MDL court. Over more than fifty years of multidistrict litiga-
tion under § 1407, federal courts have worked with parties
Nos. 20-3103 & 20-3104 5
and their counsel to develop “specialized procedures to man-
age the pretrial proceedings in the related cases.” Bell v. Publix
Super Markets, Inc., 982 F.3d 468, 488 (7th Cir. 2020); see also
Abbe R. Gluck, Unorthodox Civil Procedure: Modern Multidis-
trict Litigation's Place in the Textbook Understandings of Proce-
dure, 165 U. Pa. L. Rev. 1669, 1672, 1688–93 (2017) (noting that
39 percent of all open civil cases on federal dockets are in
MDLs, and analyzing custom-tailored procedures often used
in MDLs); Bradt, 88 Notre Dame L. Rev. at 788–89; Eldon E.
Fallon et al., Bellwether Trials in Multidistrict Litigation, 82 Tul.
L. Rev. 2323, 2328 (2008).
A direct-filing order is one such procedure. Direct filing
eliminates the need for plaintiffs to file their cases in their
home jurisdictions (or other valid forums apart from the MDL
court) and then wait for their cases to be tagged and later
transferred to the MDL transferee court. Instead, once the
transferee judge institutes direct filing—typically through an
agreed case management order—plaintiffs can file directly in
the MDL court, avoiding the delays in the tag-along process.
Direct filing can be a useful tool in managing multidistrict
litigation because it “eliminates the judicial inefficiency that
results from two separate clerk’s offices having to docket and
maintain the same case and three separate courts (the trans-
feror court, the MDL Panel, and the transferee court) having
to preside over the same matter.” Fallon, 82 Tul. L. Rev. at
2356; see also id. at 2355 (“[I]t has become increasingly more
time-consuming and expensive for an individual case to find
its way into a transferee court.”). These advantages can bene-
fit all parties and the courts. See Bradt, 88 Notre Dame L. Rev.
at 764 (“Defendants prefer centralizing all of the cases, and
plaintiffs prefer skipping the transfer step, while preserving
6 Nos. 20-3103 & 20-3104
their prerogative to return to a more convenient forum if and
when pretrial proceedings conclude.”).
Direct filing can bring its own complications and potential
pitfalls, however. The procedure can affect personal jurisdic-
tion, venue, and choice of law. Section 1407 does not expressly
authorize transferee courts to override otherwise applicable
law, as shown in Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, where the Supreme Court rejected a favorite tool of
many MDL transferee courts by holding that a transferee
court does not have the power to order a case transferred to
itself for purposes of trial. 523 U.S. 26, 28 (1998); see also Larry
Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. Rev.
547, 552–53 (1996) (Klaxon and Van Dusen constrain choice of
law in federal courts both inside and outside MDLs and other
complex cases).
Yet despite the limits on a transferee court’s coercive pow-
ers, the issues affected by direct filing—personal jurisdiction,
venue, and choice of law—are waivable. The parties’ consent
to the procedure and agreement on its consequences should
remove the risk of later objections. See, e.g., In re Vioxx Prod-
ucts Liability Litigation, 478 F. Supp. 2d 897, 903 (E.D. La. 2007)
(after securing defendant’s consent that it “will not assert any
objection of improper venue” to cases that would be properly
included in the MDL, transferee judge explained that “a plain-
tiff may now file any such complaint against [the defendant]
directly in the [MDL court], rather than in a federal district
court affording proper venue”).
C. The Dobbs Rule
Our focus here is on the choice of law when direct filing is
used. One possible but highly formalistic answer is the
Nos. 20-3103 & 20-3104 7
straightforward application of Klaxon and Van Dusen to say
that use of direct filing means that the MDL court should ap-
ply choice-of-law rules for its own state because that is where
the case was actually filed. In MDL litigation, however, dis-
trict courts have often applied a different approach, treating a
direct-filed case as if it had been filed in the plaintiff’s origi-
nating state and applying that state’s choice-of-law rules. We
and other circuits have endorsed that approach, and that’s the
approach first advocated by Cook and adopted by the district
court in this MDL.
A good place to start is the Yasmin & Yaz MDL, where
Judge Herndon (a veteran MDL judge) tackled this question.
He concluded that, rather than applying the Klaxon/Van Dusen
rule mechanically based on the MDL venue where direct fil-
ing occurred, “the better approach” was to “treat foreign di-
rect filed cases as if they were transferred from a judicial dis-
trict sitting in the state where the case originated.” In re Yasmin
& Yaz (Drospirenone) Marketing, Sales Practices & Products Lia-
bility Litigation, 2011 WL 1375011, at *5–6 (S.D. Ill. Apr. 12,
2011) (choice of law for attorney-client privilege and work-
product doctrine). Judge Herndon had issued a direct-filing
order that provided direct filing would not affect the choice
of law that otherwise would apply, and he concluded that the
administrative convenience of direct filing should not change
applicable choice-of-law rules.
Two years later, another veteran MDL judge took the same
approach in In re Watson Fentanyl Patch Products Liability Liti-
gation, 977 F. Supp. 2d 885, 888 (N.D. Ill. 2013). Judge Kennelly
declined to apply the MDL forum state’s choice-of-law prin-
ciples to decide which state’s law should govern the process
of approving a settlement in a wrongful-death case. He wrote
8 Nos. 20-3103 & 20-3104
that “it would not make a great deal of sense” to apply the
law of “an artificial forum created for purposes of conven-
ience and efficiency” that otherwise had no connection to the
proceedings. Id. The direct-filing order apparently had not ad-
dressed choice of law directly because the procedure was in-
tended for only a small number of cases that had already been
settled in principle.
Another version of this choice-of-law issue then reached
this court in Dobbs v. DePuy Orthopedics, Inc., 842 F.3d 1045(7th Cir. 2016). Plaintiff Dobbs had hired an attorney on a con-
tingent-fee basis for his products-liability suit as part of a mul-
tidistrict litigation. Since the multidistrict litigation was al-
ready in progress and had a direct-filing order, Dobbs elected
to file directly in the MDL court rather than his originating
jurisdiction. Dobbs later fired his attorney after the attorney
recommended that he accept a settlement offer. Dobbs later
changed his mind and, acting pro se, accepted the settlement.
At that point, his former attorney sued Dobbs on a quantum
meruit theory. The district court agreed with the lawyer and
awarded him a fee that amounted to the full contingent fee.
Dobbs appealed, and a threshold issue was whether the
laws of the MDL court or the originating state applied to the
award of attorney fees. In deciding that issue, we recognized
that Klaxon typically controlled in federal diversity cases ap-
plying state law and that Van Dusen would control in a case
transferred from another proper federal venue. However,
Dobbs had filed his claim in the MDL court only because the
“multidistrict litigation was already in progress there,” and
Dobbs identified an originating forum in his complaint that
“was the appropriate venue absent the multidistrict litiga-
tion.” Id. at 1048–49. This evidence “advise[d] treating the
Nos. 20-3103 & 20-3104 9
[originating forum] as the original venue.” Id. at 1049. We
heeded this advice and applied the choice-of-law rules of the
originating forum, not those of the MDL forum. In doing so,
we expressly adopted the approach of these leading district
court cases: “In fact, district courts in our circuit have taken
[this] approach: foreign cases filed directly in a district court
as a part of ongoing multidistrict litigation are treated as hav-
ing originated outside of that district. We ratify that approach
here and apply [the originating state’s] choice-of-law rules.”
Id., citing Watson Fentanyl Patch, 977 F. Supp. 2d at 888–89 and
Yasmin & Yaz, 2011 WL 1375011, at *5.
Dobbs did not create a new rule but ratified the pragmatic
approach adopted by Judges Herndon and Kennelly, among
others. On this issue, Dobbs also followed a Sixth Circuit opin-
ion that had taken the same approach. In Wahl v. General Elec-
tric Co., 786 F.3d 491 (6th Cir. 2015), plaintiff Wahl had joined
a multidistrict litigation against General Electric for injuries
she sustained allegedly from a GE contrast agent used in med-
ical imaging. Pursuant to a direct-filing order, Wahl filed her
case directly in the MDL court rather than where she received
the contrast agent. The defendant argued that the originating
state’s choice-of-law rules applied to Wahl’s claim, while
Wahl argued that the MDL forum’s choice-of-law rules ap-
plied.
The Sixth Circuit sided with the defendant: “Direct-filed
MDL suits that are then transferred to a more convenient fo-
rum for trial are an exception to the ordinary” choice-of-law
rules. Id. at 496. In the alternative, “every district court receiv-
ing a direct-filed MDL suit would be bound to apply the
choice of law principles of the MDL forum. In effect, the acci-
dent of bureaucratic convenience would elevate the law of the
10 Nos. 20-3103 & 20-3104
MDL forum.” Id. Such an alternative regime would have se-
vere negative consequences, the court said: “Any benefit in ef-
ficiency from combining similar litigations for pretrial mo-
tions would pale in comparison to the complications of apply-
ing the substantive law of the venue in which the MDL panel
happened to convene cases from around the country.” Id. at
499. Thus, for directly filed cases in an MDL, the Sixth Circuit
adopted the rule that we later ratified in Dobbs.
This treatment of choice of law in direct-filed cases seems
common. Among MDL courts, the “weight of authority” re-
flects a rule akin to Dobbs. Id. at 497–98 (collecting cases), see
also Wahl v. General Electric Co., 983 F. Supp. 2d 937, 943 & n.11
(M.D. Tenn. 2013) (collecting cases and explaining that courts
applying contrary approach did so “with little or no analy-
sis”). Circuits that have addressed this question since Dobbs
likewise have not departed from this common practice. See In
re Bair Hugger Forced Air Warming Devices Products Liability Lit-
igation, 999 F.3d 534, 538 (8th Cir. 2021) (“Because claims in
MDL cases often wind up in the MDL forum through an ‘ac-
cident of bureaucratic convenience,’ this court and others
have concluded in many instances that the substantive law of
the forum the individual complaint was or would have been
brought in should govern, rather than the law of the MDL fo-
rum.” (citation omitted)); In re DePuy Orthopaedics, Inc., 870
F.3d 345, 348 (5th Cir. 2017) (“Cases that are directly filed in
an MDL court are treated ‘as if they were transferred from a
judicial district sitting in the state where the case origi-
nated.’”), quoting Yasmin & Yaz, 2011 WL 1375011, at *6; Tim-
othy v. Boston Scientific Corp., 665 F. App’x 295, 296 (4th Cir.
2016) (per curiam) (in direct-filed case, the originating juris-
diction’s “choice of law principles controll[ed] because the ac-
tions forming the basis of the lawsuit occurred there”).
Nos. 20-3103 & 20-3104 11
Under the Dobbs approach, which was urged by Cook and
adopted by the district court at earlier stages of this MDL, ap-
pellants Looper and Lambert both filed their cases within the
applicable statutes of limitations. Cook does not challenge
Dobbs as incorrectly decided on its own terms, but it seeks to
distinguish it so that it should not apply to these cases. Cook
argues that Dobbs should not apply here because (1) the MDL
venue was itself always a proper venue for these cases inde-
pendent of the MDL, and (2) there was in fact no direct-filing
order. As Cook sees the issue, at least in these two appeals,
this case differs from Dobbs, Yasmin & Yaz, Watson Fentanyl
Patch, and Wahl because the Southern District of Indiana
would have been a proper venue for these cases regardless of
the MDL or its bureaucratic needs, including the convenience
of direct filing. Cook thus contends there is no need to depart
from what the Sixth Circuit called the “mechanical applica-
tion of the transferor-transferee rule articulated in Van
Dusen.” Wahl, 786 F.3d at 498.
Cook raises substantial questions regarding how Dobbs in-
teracts with Klaxon and Van Dusen, particularly if the parties
have not consented to a specific approach to choice of law in
directly filed cases. Would it still make sense to apply Dobbs
when the plaintiff could have filed her case in the MDL venue
even if the multidistrict litigation did not exist? Does it matter
whether the plaintiff or the defendant seeks to invoke the
choice-of-law rules of the MDL venue? Does it matter whether
the direct-filing order expressly addresses the issue of choice
of law? Dobbs did not address these questions, but our opin-
ion also did not impose or imply the limits that Cook would
have us apply here. The other cases we have cited adopting
this approach also did not address this specific variation on
the broader problem. Still, Lexecon stands as a stark reminder
12 Nos. 20-3103 & 20-3104
that practices that MDL transferee judges adopt for sound,
practical reasons are not always legally permissible, at least
without the parties’ consent.
Without clear advance guidance from a transferee judge
and consent from the parties about how the MDL court
should decide choice-of-law issues in directly filed cases,
there are substantial risks of confusion and unfairness. To
avoid potential surprises and harsh outcomes, we must say—
from our institutional perch as Monday-morning quarter-
backs—that transferee judges should consider securing ex-
press, written agreements to which states’ choice-of-law prin-
ciples will govern directly filed cases before permitting direct
filing. 1
II. Implied Consent on Choice of Law
In these cases, we decline to address the more general
question of whether Dobbs is limited as Cook argues it should
be. Instead, several features of the record as a whole persuade
us that Cook at least implicitly, but clearly, consented to the
application of originating state choice-of-law rules to directly
1Direct-filing orders often do not discuss choice-of-law issues, so it is
not apparent that the mere existence of such an order would establish the
necessary consent to a departure from Klaxon and Van Dusen. See Bradt,
88 Notre Dame L. Rev. at 764 (“The orders courts have adopted often say
nothing about the choice-of-law implications of direct filing, and when
they do, they usually say that direct filing will have ‘no effect’ on the ap-
plicable law.”). For instance, the Yasmin & Yaz direct-filing order said that
it would “not impact the choice of law that otherwise would apply to the
direct filed actions.” 2011 WL 1375011, at *5. Read in isolation, that lan-
guage does not signal clearly whether the direct-filing order meant that
Klaxon or the law of a plaintiff’s originating jurisdiction should control,
though we assume the baseline was the choice of law that would have
applied if the cases had been filed in their originating jurisdictions.
Nos. 20-3103 & 20-3104 13
filed cases. That evidence includes the provisions for so-called
short form complaints, earlier litigation over the same issue in
other cases in the MDL where Cook convinced the district
court to take the approach opposite to its position here, and
case management orders reflecting the importance and value
of direct filing. If Cook wants to revoke that consent prospec-
tively, consistently across the whole MDL and as to statutes
of limitations and other issues, it should address that request
to the MDL court, but it should do so without overreaching to
apply such a revocation retroactively to deem cases untimely
based on its new understanding of the law.
A. The Short Form Complaint
Appellants Looper and Lambert and thousands of other
patients have alleged that they received defective IVC filters
manufactured by Cook. After the Judicial Panel on Multidis-
trict Litigation established this MDL in the Southern District
of Indiana, the parties swiftly drafted and the court approved
a Case Management Plan. The order called for use of a “Short
Form Complaint” in so-called “direct filing.” Plaintiffs could
use this complaint form to file directly in the MDL court ra-
ther than filing in the federal courts in their home jurisdictions
and waiting for their cases to be tagged and transferred to the
MDL court for pretrial proceedings. Relevant to these ap-
peals, the short form complaint included a line for a plaintiff
to designate the “District Court and Division in which venue
would be proper absent direct filing.” There are two apparent
reasons to include this language: to identify (1) where trial
should be held after pretrial proceedings are wrapped up,
and (2) which state’s choice-of-law rules govern the dispute.
And those two reasons are closely related. It would be very
odd to transfer a case back to a district in an originating state
14 Nos. 20-3103 & 20-3104
for application of the substantive law of the MDL court’s
state. 2
B. Cook Argues for the Law of the Originating Jurisdictions
To determine the purpose of the “originating jurisdiction”
line in the short form complaint for this MDL, we need not
look further than Cook’s own prior arguments in at least
seven individual cases. In moving for judgment on the plead-
ings for a set of six Cook IVC filter cases based on statutes of
repose, Cook cited this line in the short form complaint as
identifying the district courts whose choice-of-law rules ap-
plied. The set of six cases is known as the Sales-Orr cases, after
one of the plaintiffs. In a combined motion aimed at those
cases, Cook wrote: “the plaintiffs’ Short Form Complaints
demonstrate that their claims ‘originated’ in their respective
home states of Georgia, Tennessee, and Texas, and those
states’ choice-of-law rules apply.” Cook Defs.’ Mem. in Sup-
port of Motion for Judgment on the Pleadings Based on Stat-
utes of Repose, at 3, ECF No. 4186 (Mar. 27, 2017). In other
words, Cook asserted that the applicable statutes of limita-
tions and/or repose in direct-filed cases should be those of the
originating jurisdictions.
That was not the first time Cook had advanced that choice
of law approach in this MDL. In the Valerie Graham case, Cook
filed a motion to dismiss a case on statute-of-limitations
2 We pause to clarify one shortcut in our analysis. Van Dusen calls for
the transferee court to apply the choice-of-law rules of the transferring
court, which may or may not call for applying that state’s substantive law.
376 U.S. at 639. In these cases, however, we do not dig into the details of
those state’s choice-of-law doctrines. All parties agree that the respective
choice-of-law rules for South Carolina, Mississippi, and Indiana would
call for applying the forum state’s statute of limitations.
Nos. 20-3103 & 20-3104 15
grounds on February 2, 2016. Cook argued for the district
court to adopt the Yasmin & Yaz rule later ratified by Dobbs.
Critically, the originating state’s law in the Valerie Graham case
benefited Cook, whereas here it’s the other way around. Cook
wrote at the time:
When a case based on diversity is part of an
MDL and is directly filed in the MDL forum as
the result of a direct filing order, courts have
found that the ”better approach is to treat for-
eign direct filed cases [i.e., cases originating out-
side of this Court’s judicial district but filed di-
rectly into the MDL] as if they were transferred
from a judicial district sitting in the state where
the case originated.” In re Yasmin, 2011 U.S. Dist.
LEXIS 39820, at *15, *18 (S.D. Ill. April 11,
2011.).… Accordingly, Kansas is the originating
state and Kansas choice-of-law provisions ap-
ply.
Cook Defs.’ Br. in Support of Motion for Summary Judgment,
at 5–6, ECF No. 1051 (Feb. 2, 2016) (alteration in original).
If asking the district court to apply a certain rule to a case
is not “consenting” to that rule, then we are not sure what
would be. Then, more than a year later, as noted, Cook reiter-
ated its arguments for (and thus consent to) the Dobbs rule. In
the six Sales-Orr cases, using almost exactly the same lan-
guage it used in Graham, Cook again invoked the Dobbs rule
for statutes of repose. The court agreed with Cook:
This motion addresses those Plaintiffs, whose
cases originated outside of this court’s judicial
district but were directly filed in this MDL
16 Nos. 20-3103 & 20-3104
forum (“foreign direct filed cases”), pursuant to
the court’s direct filing order. The specific issue
raised in the present motion is whether the
court should apply the choice-of-law rules of
the MDL forum (Indiana) or the choice-of-law
rules of the state where the case would have
been brought had it not been part of this MDL.
In 2011, the Southern District of Illinois ad-
dressed this issue and held that “the [better] ap-
proach is to treat foreign direct filed cases as if
they were transferred from the judicial district
sitting in the state where the case originated.”
The court adopts this approach ….
Entry on Motion for Judgment on the Pleadings Based on the
Statute of Repose, at 3, ECF No. 4918 (May 31, 2017) (empha-
sis added), citing Yasmin & Yaz, 2011 WL 1375011, at *6. Under
that approach to Looper’s and Lambert’s cases, their claims
were timely.
A plaintiff may tailor her litigation strategy to the current
state of play in the MDL and should not have a trap sprung
on her based on a retroactive change of the ground rules. Even
if the district court was or remains inclined to allow Cook to
revoke its implicit consent and to change its position on the
choice-of-law question for directly filed cases, such a change
should not be applied retroactively to cases where corrective
action was no longer possible in response to Cook’s and the
district court’s change in position.
C. Case Management Orders
Case management orders provide additional evidence of
the prevailing practice here that was consistent with Dobbs. As
Nos. 20-3103 & 20-3104 17
the MDL progressed, the district judge issued various case
management orders. These orders governed deposition pro-
tocols, amendments to the case management plan, and many
other topics. The orders also provide further evidence as to
the state of play in this MDL and the parties’ understanding
of its ground rules, including Cook’s implicit consent to ap-
plying choice-of-law rules from properly identified originat-
ing jurisdictions for direct-filed cases.
For instance, in at least two orders, the court referred to
“direct filing.” Case Management Order #3 explained: “As to
cases directly filed in the Southern District after the entry of
this Order and the entry of an order in MDL 2570 permitting
direct filing, the Short Form Complaints will not name the Ad-
ditional Cook Entities.” ECF No. 353 at 2. And Case Manage-
ment Order #5 explained that its guidance applied to “(1) all
cases transferred to this court by the Judicial Panel on Multi-
district Litigation, including those cases identified in the orig-
inal Transfer Order and those subsequently transferred as
tag-along actions; and (2) all cases directly filed in or removed
to this MDL.” ECF No. 355 at 1.
As these orders, the short form complaints, and Cook’s
earlier briefing in Sales-Orr and Graham indicated, the court
and the parties simply proceeded as if direct filing were per-
missible and as if a direct-filing order were on the books. A
plaintiff’s lawyer who looked at these orders could reasona-
bly conclude that direct filing, pursuant to a direct-filing or-
der, was proper and welcome in this MDL. And if she looked
further into the MDL’s docket, she would have found Cook’s
successful arguments for applying choice-of-law rules from
originating jurisdictions in directly filed cases. Roughly six
thousand plaintiffs took advantage of direct filing.
18 Nos. 20-3103 & 20-3104
D. Cook’s Counterarguments
The unfairness of Cook’s switching from one rule to its op-
posite within this MDL is self-evident, at least as applied to
these plaintiffs. In trying to justify this about-face, Cook raises
several arguments that we find unpersuasive.
First, Cook argues that it can take inconsistent positions in
the different cases because individual cases in multidistrict lit-
igations retain their “separate identities.” Appellees’ Br. 51,
quoting Gelboim v. Bank of America Corp., 574 U.S. 405, 413
(2015). That can certainly be true for many purposes, such as
requiring separate individual judgments and appeal rights, as
in Gelboim itself. 574 U.S. at 413 n.3; see also Bell v. Publix Super
Markets, Inc., 982 F.3d 468, 489–90 (7th Cir. 2020); In re Refrig-
erant Compressors Antitrust Litigation, 731 F.3d 586, 590–92 (6th
Cir. 2013). But given the common ground among the cases
that justifies the use of the MDL process in the first place, it is
not realistic or fair to allow a party to use such formalities to
have the transferee MDL court justify a retroactive 180-degree
turn on a decisive procedural issue after establishing what the
court itself called the “law of the case,” referring to the MDL
as a whole. ECF No. 12931 at 4.
Second, Cook argues that even if it consented to using the
short form complaints and their structure, it did not consent
to their contents. Cook writes: “in agreeing to the form of the
short-complaint, Cook did not agree to the substance of any
of the allegations that would be made in that short-form com-
plaint or, for that matter, the legal implications those allega-
tions would have.” Appellees’ Br. 46 (emphasis omitted). The
argument addresses a strawman. No one is arguing that Cook
admitted the allegations in these plaintiffs’ short form com-
plaints. The key points are (a) that one of two evident
Nos. 20-3103 & 20-3104 19
purposes for identifying originating jurisdictions is to deter-
mine choice-of-law rules, and (b) that Cook itself persuaded
the district court to use those identifications for exactly that
purpose.
Third, Cook relies on the absence of an actual direct-filing
order, saying that it changed its position only after discover-
ing that absence. We are not convinced, given the actions of
the parties and the court as if such an order had been in place
at the times relevant to Looper and Lambert.3
Cook urges us to ignore its prior arguments because it was
merely “mistaken.” A mistake in a few cases, as Cook puts it,
should not “add up to a stipulation to deviate” from Klaxon.
Appellees’ Br. 48. We appreciate the point, perhaps in going
forward, but in our view, such a mistake in giving implicit
consent to the Dobbs treatment of choice of law could not jus-
tify a retroactive correction to spring a trap on these plaintiffs
3 The surprising discovery came in addressing whether the parties
had preserved their so-called “Lexecon rights” in direct-filed cases. Years
after Cook successfully argued in the Graham and Sales-Orr cases that di-
rect-filed cases should be governed by the choice-of-law rules and statutes
of limitations of their originating jurisdictions, the MDL proceeded to the
bellwether trial stage. A dispute arose over where the trials would take
place. In Lexecon, the Supreme Court held that in MDL cases that were
tagged and transferred, the parties retained their rights to insist on re-
transfer back to their originating jurisdictions for trial once pretrial pro-
ceedings concluded in the MDL court. 523 U.S. at 28. Parties can consent
to having the MDL court retain such cases for trial, but without consent,
the right to re-transfer remains. Since there was no direct-filing order in
this MDL, the district judge concluded that the parties in direct-filed cases
had not preserved their Lexecon rights, thus allowing the MDL court to
preside over the trials. ECF No. 11131 at 2. We express no views here on
that issue, which may present considerations quite different from the stat-
ute-of-limitations defenses in these appeals.
20 Nos. 20-3103 & 20-3104
who acted consistently with Cook’s and the district court’s
earlier position.
In the first place, it is not at all clear to us that Cook’s ear-
lier position was incorrect. It was consistent with the weight
of authority in MDL cases using direct filing, including our
opinion in Dobbs. We understand Cook’s arguments for im-
posing new limits on the Dobbs rule, but those new limits are
at least contestable. Cook’s rationale for limiting Dobbs, Yas-
min & Yaz, and the other direct-filing MDL cases has been re-
verse-engineered to fit Cook’s interests in the two appeals be-
fore us. That’s neither unusual nor blameworthy, but Cook is
asking us to impose limits that those opinions did not invite.
Moreover, it asks us to do so based on a theory that bears no
relationship to the actual behavior of Cook, the MDL plain-
tiffs, and the district court here. Despite the absence of a for-
mal direct-filing order in this MDL, everyone acted for years
as if one were in place.
With respect to Cook’s claim that its earlier victories in the
Sales-Orr and Graham cases were based on mistakes, Cook had
every incentive when it first made these arguments about the
choice of applicable statutes of limitations to discover
whether a direct-filing order existed. Cook was more than ca-
pable of determining this fact if it had any doubts. In our
view, Cook—not Looper and Lambert—bore the risk of its
mistake when it made and won with these prior arguments,
establishing a prevailing practice in how the MDL court
treated directly filed cases. We do not see a valid reason for
holding Cook’s claimed mistake against these two appellants.
Since the MDL progressed as if a direct-filing order had
been on the books, the parties were entitled to adapt their lit-
igation approaches with this fact in mind. The situation seems
Nos. 20-3103 & 20-3104 21
comparable to us to that contemplated by Federal Rule of
Civil Procedure 15(b)(2), which provides that an issue tried by
the parties’ express or implied consent must be treated as if it
had been raised in the pleadings. In addition, at relevant times
here, the law offered strong support for the view that foreign
direct-filed cases are governed by their originating states’
choice of law rules. Again, Cook’s own actions in the MDL
show that it conformed its own behavior to this understand-
ing. Cook consented to this treatment of direct-filed cases—
indeed, welcomed it—until it no longer benefited Cook, lead-
ing to the about-face against Looper and Lambert and these
appeals. That unfair reversal of course should not stand. We
know of no prior multidistrict litigation that allowed one
party to withdraw its consent—retroactively—to the treat-
ment of direct-filed cases halfway through the MDL, spring-
ing a trap shut on parties who complied with the law of the
case. We decline to be the first to do so without giving the tar-
geted parties an opportunity to take remedial actions.
E. Judicial Estoppel?
Much of what we have said echoes the grounds for the
doctrine of judicial estoppel: a party succeeds on one legal po-
sition and later tries to reverse its position on the same issue.
In some ways, Cook’s about-face looks like an example of a
party playing fast and loose with the courts—the type of be-
havior that judicial estoppel is designed to protect against.
E.g., New Hampshire v. Maine, 532 U.S. 742, 749–50 (2001) (ju-
dicial estoppel “protect[s] the integrity of the judicial process”
by “’prohibiting parties from deliberately changing positions
according to the exigencies of the moment’”) (citations omit-
ted); see also Davis v. Wakelee, 156 U.S. 680, 689 (1895)
(“[W]here a party assumes a certain position in a legal
22 Nos. 20-3103 & 20-3104
proceeding, and succeeds in maintaining that position, he
may not thereafter, simply because his interests have
changed, assume a contrary position, especially if it be to the
prejudice of the party who has acquiesced in the position for-
merly taken by him.”). Looper (but not Lambert) thus raised
judicial estoppel as an alternative ground for reversal.
We do not necessarily reject application of judicial estop-
pel here, but we think the better course is to rely on the strong
evidence of Cook’s implied but clear consent to use of choice-
of-law rules from originating jurisdictions in direct-filed cases
like these two. Use of judicial estoppel here may have broader
and unforeseen consequences in this or other MDL cases, so
we adopt this more cautious, case-specific approach. For ex-
ample, judicial estoppel does not permit a party to change her
position prospectively, whereas consent can be revoked for
future cases when it would not unfairly prejudice parties who
conformed their approach to the opposing party’s earlier ap-
proach. It is possible that an expansive use of judicial estoppel
could unduly complicate the work of MDL courts and the par-
ties before them in complex cases like this one.
In addition, while we think the evidence of Cook’s consent
to using choice-of-law rules from originating jurisdictions is
unmistakable here, we would review a decision on judicial es-
toppel for an abuse of discretion. See In re Knight–Celotex, LLC,
695 F.3d 714, 721 (7th Cir. 2012) (a decision to impose judicial
estoppel is a “matter of equitable judgment and discretion,”
which we review for an abuse of discretion). Judge Young’s
written order on the question of judicial estoppel was cryptic,
referring to the “unique circumstances of this case.” Entry on
Oct. 25, 2019 Hearing on Cook’s Renewed Omnibus Motion
for Summary Judgment on Statute of Limitations, at 1, ECF
Nos. 20-3103 & 20-3104 23
No. 12256 (Oct. 19, 2019). In the hearing in Looper’s and Lam-
bert’s cases, he said that he did not believe that Cook had de-
liberately misled him, and rather that its 180-degree reversal
had been the product of a mistake. A court considering an is-
sue of judicial estoppel may consider the difference between
informed and mistaken choices. See In re Cassidy, 892 F.2d 637,
642 (7th Cir. 1990) (judicial estoppel should not be imposed
when the former position was the product of a mistake).
* * *
Our decision should not be read too broadly. Finding con-
sent within the specific facts of this case does not mean that
consent will exist in every case where direct filing is used, and
Cook points out significant tension between Klaxon and Dobbs
if the Dobbs rule is applied without a party’s consent to it.
More generally, for future reference we urge transferee judges
to use written orders to ensure clear consent from parties
about how they will manage choice-of-law, personal jurisdic-
tion, and venue issues in directly filed cases. See Vioxx, 478 F.
Supp. 2d at 903. The court thus secures consent for parties to
file in the MDL forum, opening a second door for new filings
and creating judicial efficiencies in the process without creat-
ing new uncertainties and disputes.
To sum up, under the choice-of-law rules to which Cook
consented, Looper’s and Lambert’s cases are governed by the
law of their originating jurisdictions and are timely. Accord-
ingly, the judgments of the district court are REVERSED and
these two cases are REMANDED to the district court for fur-
ther proceedings consistent with this opinion.