Res Judicata Bars Second Suit in E.D. La., Notwithstanding “New” Claim
Today we ponder “do-overs,” a timely topic as the House of Representatives struggles, over and over, to elect a speaker. As we write, the seventh unsuccessful vote has just concluded. We have learned that the record stands at 22 votes before the beleaguered candidate finally prevailed. This was in 1820, as John W. Taylor, an outspoken abolitionist, ran against a pro-slavery opponent for the seat vacated by Henry Clay, who resigned after shepherding the Missouri Compromise to victory. All kinds of things are “done over” when first attempts fail. In a horse race, if someone breaks early from the gate, everyone is loaded back in and the race is re-started. We discarded our too-salty potato latkes in favor of a less-freehanded batch. And a former elected official apparently believes that he can re-brand himself through virtual superhero trading cards for a do-over of a resounding defeat.
It is our fervent hope that this last meets the same fate as the attempted do-over in today’s case. In Reddick v. Medtronic, Inc., 2022 WL 17903708 (E.D. La. Dec. 23, 2022), the plaintiff sued, in the Eastern District of Louisiana, for injuries allegedly caused by the defendant’s implantable cardiac defibrillator, asserting claims under Louisiana’s Product Liability Act. The defendant won summary judgment in March 2022, and the Fifth Circuit affirmed the ruling shortly thereafter. In April 2022 – only one month later – the plaintiff filed suit in Louisiana state court, asserting claims that were identical except for one claim (more about that in a moment). The defendant removed the case to the Eastern District of Louisiana, and the defendant moved to dismiss for failure to state a claim, arguing that the doctrine of res judicata barred the plaintiff’s claims. (The defendant asserted other bases for dismissal as well, including preemption and limitations, but the court did not need to reach these.)
The court explained that Louisiana’s res judicata statute bars a suit when the judgement is valid and final, the parties are the same, the causes of action in the second suit existed at the time of the final judgment in the first suit, and the causes of action in the second suit arose out of the occurrence that was the subject matter of the first suit. The defendant argued that it had established all of these elements. In opposition, the plaintiff argued that a “new cause of action ha[d] arisen” out of the defendant’s “defect” admissions to the FDA about the product’s battery life and an April 2021 recall of the product. Reddick, 2022 WL 17903708 at *3.
The court disagreed, holding that the FDA recall did not create a new cause of action for purposes of res judicata. As the court explained, “[a]n FDA recall does not, in and of itself, create a ‘cause of action’” under the LPLA; rather, it is “mere evidence that may be used to support the elements of a cause of action.” Id. “Moreover,” the court continued, “nothing barred plaintiff from soliciting expert testimony regarding the battery life of the device in the first suit as a claim under the LPLA, and the FDA recall does nothing more than potentially provide additional evidence as to a new theory of liability – one that plaintiff could have raised in his first suit.” Id. at *4 (emphasis in original). The court concluded the plaintiff was unable to change the “critical fact” that he had had “the opportunity to litigate and investigate these exact claims” in his first lawsuit. This, the court emphasized “is the quintessential circumstance in which Louisiana’s broad application of res judicata steps in to foster judicial efficiency and protect litigants from duplicative litigation.” Id.
Next, the court considered the legislative history of Louisiana’s res judicata statute. The statute was broadened in 1990 to “embrac[e] the notion of extinguishment of a cause of action” even if not identical to those asserted in the previous suit, when it arises out of the occurrence that was the subject matter of the earlier suit. In this case, the court held that the “new” claim arose out of the same occurrence that was the subject of the plaintiff’s earlier claims, so the doctrine of res judicata barred the second lawsuit. Finally, the court denied the plaintiff leave to amend, finding that amendment would be futile because “no amendment would cure the deficiency” in the plaintiff’s res judicata-barred second suit.
Just imagine where defendants would be if every product recall created a new cause of action for every previously-defeated plaintiff/user of that product. We like this decision, in bites-of-the-apple terms. And, in the time it took us to draft this post, an eighth unsuccessful speaker vote transpired. Stay tuned, and stay safe out there.