We have been watching the Darvocet multi-district litigation (MDL 2226) for some time, most notably the Sixth Circuit’s decision to dismiss 67 of 68 cases alleging misbranding by drug manufacturers.  After that decision, plaintiffs’ counsel began filing new cases in California state court.  The defendants removed the cases to federal court and then obtained a transfer of the cases into the Darvocet MDL in the Eastern District of Kentucky.  The MDL court remanded the case back to California, but certified the remand issue for an interlocutory appeal under 28 U.S.C. § 1292(b) because keeping the case in Kentucky would “subject the [] cases to this Court’s dispositive rulings”—in other words, the cases would be dismissed without the remand.  (Section 1292(b) requires that an appeal “materially advance the ultimate termination of the litigation.”)

Defendants filed two appeals, one under 1292(b) and the other under the collateral order doctrine.  The Sixth Circuit dismissed the collateral order doctrine appeal sua sponte, which was not unexpected because there was nothing exceptional or particularly consequential about the issue.  The Court’s decision on the 1292(b) appeal was more surprising and a little enigmatic:  “we are not persuaded that an immediate appeal is likely to materially advance the ultimate termination of these cases.”

What does this statement mean?  There little question that the case would be at an end without a remand—even the plaintiffs conceded that the Kentucky MDL court would likely dismiss their cases.  In that sense, the outcome of the appeal could be dispositive.  But that was not enough for the panel, which may have believed that the ten-month delay to resolve an arcane remand issue was not really advancing the litigation, especially if the court affirmed on the remand issue.  The panel may also have been uncomfortable with allowing a discretionary 1292(b) appeal to be used to keep a case in a favorable forum, rather than advancing the merits.

Discretionary appeals, especially under 1292(b), should involve issues that are “fundamentally important” to the “outcome of the litigation.”  Both of these dismissal orders emphasize the extraordinary and exceptional requirements for a discretionary appeal.