In In re Depuy Orthopaedics, Inc., 2017 WL 3768923 (5th Cir. Aug. 31, 2017), the petitioners sought mandamus relief from the Fifth Circuit, asking the court to prohibit the district court from allowing the next set of multidistrict litigation (MDL) bellwether cases to proceed to trial in the Northern District of Texas. Federal law limits an MDL court’s jurisdiction to pretrial proceedings and requires remand to the originating district once those proceedings are complete. However, if the parties waive potential venue or personal jurisdiction objections (or both), the MDL court can try the case. Such waivers are known as Lexecon waivers. The petitioner defendants agreed to waive their Lexecon objections for the cases selected for the first two bellwether trials. After those two trials, one of which returned a verdict for the petitioners, while the other returned a $502 million verdict for the plaintiffs, the petitioners moved to stay future trials pending their appeal, asserting that they did not make a universal Lexecon waiver and reserved their venue objections to future trials. The district court denied the stay, and the next trial yielded a $1.04 billion verdict for the plaintiffs. The court then ordered additional cases for a fourth bellwether trial scheduled for September 5, 2017. Consequently, the petitioners sought mandamus relief in an effort to halt the proceedings.
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