Norgaard v. DePuy Orthopaedics, Inc.

• Decision Date: 31 July 1997
• Docket Number: No. 96-3892.,96-3892.
• Citation: 121 F.3d 1074
• Parties: Norma J. NORGAARD and Delmar E. Norgaard, Plaintiffs-Appellants, v. DePUY ORTHOPAEDICS, INC., and Boehringer Mannheim Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

121 F.3d 1074

Norma J. NORGAARD and Delmar E. Norgaard, Plaintiffs-Appellants, v. DePUY ORTHOPAEDICS, INC., and Boehringer Mannheim Corporation, Defendants-Appellees.

No. 96-3892.

United States Court of Appeals, Seventh Circuit.

Argued May 12, 1997.

Decided July 31, 1997.

Roger Gomien, Joan N. Harrop (argued), Morris, IL, for Plaintiffs-Appellants.

Stanley C. Fickle (argued), Michael R. Conner, Barnes & Thornburg, Indianapolis, IN, John F. Martin, Dukes, Martin, Helm & Ryan, Danville, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and EASTERBROOK and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

In 1987 Norma Norgaard's physician fitted her with an artificial hip, including a socket of a novel design sold as an "investigational device" under the Medical Device Amendments to the Food, Drug, and Cosmetic Act. See 21 U.S.C. § 360j(g). Seven years later her physician replaced the socket because its polyethylene liner had fractured. Norgaard and her husband then sued the manufacturer and designer of the prosthetic device under the common law of Illinois, contending that the liner's design was defective. Defendants removed the case to federal court under the diversity jurisdiction. The court entered summary judgment in their favor on the basis of Slater v. Optical Radiation Corp., 961 F.2d 1330 (7th Cir.1992), which held that 21 U.S.C. § 360k(a)(1) — which negates application to an investigational medical device of any state "requirement" that is "different from, or in addition to, any requirement applicable under this chapter" unless the Secretary of Health and Human Services approves the state's additional requirement — preempts the application of state tort law to claims that devices approved by the FDA for investigation in clinical trials suffer from design defects. The purpose of the investigation, we observed, is to determine whether the device is suitable for general use, and awards of damages on a defective-design theory to persons who agree to participate in the trials cognizant of the risks would disrupt the progress of medicine. Federal law entitles the producers of investigational devices to hold users to their bargains; state tort law cannot undermine contracts protected by federal law.

The district court entered its judgment on April 18, 1996. Two months later, the Supreme Court held in Medtronic, Inc. v. Lohr, ___ U.S. ___, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), that § 360k(a) does not preempt claims under state common law when the medical device in question has been cleared for market as "substantially equivalent" to a device already being sold. See 21 U.S.C. § 360e(b)(1)(B). Medtronic furnished the Norgaards with arguments they could have used to challenge the holding of Slater. But they had not filed a notice of appeal, or a motion in the district court under Fed. R.Civ.P. 59(e), to protect their rights in the event Medtronic should yield a favorable decision. Their lawyer was unaware that Medtronic was pending before the Supreme Court — unaware, too, of the conflict among the circuits, see ___ U.S. at ___ n. 6, 116 S.Ct. at 2250 n. 6, that led to the grant of certiorari. On July 12, 1996, sixteen days after the Court released Medtronic, and 85 days after the entry of judgment in the district court, the Norgaards filed a motion for relief from judgment under Fed.R.Civ.P. 60(b). They appeal from its denial. While their appeal was pending, our court held that Medtronic does not upset Slater. Chambers v. Osteonics Corp., 109 F.3d 1243 (7th Cir. 1997). For reasons that will become apparent, we do not rely on this, lest the outcome imply that another Rule 60(b) motion would be in order should future developments call Chambers into question.

Losing parties have 30 days in which to appeal. Fed. R.App. P. 4(a)(1). This time may be extended to 60 on a showing of "good cause" (for motions filed before the expiration of the original 30 days) or "excusable neglect" (for motions filed later). If counsel had learned during this second 30 days that Medtronic was under advisement, and asked for permission to file a belated notice of appeal, the district court would have said no. Ignorance of the Supreme Court's docket, although "neglect," is not "excusable" — it is nothing but negligence, which does not justify untimely action. United States v. Marbley, 81 F.3d 51 (7th Cir.1996); Prizevoits v. Indiana Bell Telephone Co., 76 F.3d 132 (7th Cir.1996). Cf. Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395-97, 113 S.Ct. 1489, 1498-99, 123 L.Ed.2d 74, (1993). A prudent lawyer seeking to overcome a defense of preemption will find out how the statute is understood by other courts, a step that would have led counsel to the grant of certiorari in Medtronic. Doing this research only after judgment in the district court — indeed, after the time for appeal has expired — is inexcusable. (As it happens, the Norgaards' lawyer learned about Medtronic not as the result of research, but from a report of the decision in the Chicago Daily Law Bulletin.) The Norgaards accordingly have not sought relief under Rule 60(b)(1), which permits the reopening of judgments on account of "mistake, inadvertence, surprise, or excusable neglect". Their motion rests entirely on Rule 60(b)(6), which covers "any other reason justifying relief from the operation of the judgment" (emphasis added).

The time limit in Rule 4(a)(1) would not be worth much if the losing side could revive the suit and proceed to the court of appeals by the expedient of filing a motion under Rule 60(b)(6). Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950), disapproved the use of Rule 60(b)(6) to have a second chance at an appeal. Ackermann and Keilbar lost in the district court. Keilbar appealed; Ackermann did not. After the court of appeals ruled in Keilbar's favor on grounds equally applicable to Ackermann, he filed a Rule 60(b) motion. To no avail, the Court held: "Ackermann made a considered choice not to appeal, apparently because he did not feel that an appeal would prove to be worth what he thought was a required sacrifice of his home to underwrite the expense.... Ackermann cannot be relieved of such a choice because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the outcome of the Keilbar case. There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from." 340 U.S. at 198, 71 S.Ct. at 212. If Rule 60(b) cannot be used to obtain a belated appeal from a judgment known to be wrong, given subsequent decisions of the court of appeals, it cannot be used to obtain a belated appeal from a judgment that might or might not be wrong, in light of subsequent decisions.

Today's case could have been decided in one line, with a citation to Ackermann, but for this passage in Polites v. United States, 364 U.S. 426, 433, 81 S.Ct. 202, 206-07, 5 L.Ed.2d 173 (1960):

Despite the relevant and persuasive force of Ackermann ... we need not go so far here as to decide that when an appeal has been abandoned or not taken because of a clearly applicable adverse rule of law, relief under Rule 60(b) is inflexibly to be withheld when there has later been a clear and authoritative change in governing law.

By deciding Polites on the ground that a "clear and authoritative change in governing law" had not occurred after Polites abandoned his appeal, the Court invited the conclusion that if such a change occurs, then Rule 60(b)(6) might provide relief. Ever since, courts of appeals have wrestled with questions such as "how clear?", "how authoritative?", and "how long after the original decision?", with a strong current of unwillingness to reopen judgments but with some wriggle room for future arguments. For a sampling of these cases in this circuit alone, see Parke-Chapley Construction Co. v. Cherrington, 865 F.2d 907, 915 (7th Cir.1989); In re Grand Jury, 821 F.2d 1290, 1293 (7th Cir.1987); McKnight v. United States Steel Corp., 726 F.2d 333, 336 (7th Cir.1984); DeFilippis v. United States, 567 F.2d 341, 343 n. 5 (7th Cir.1977). The Norgaards contend that they have a stronger claim than the many rejected in this sequence.

Although 37 years have passed since Polites, the Supreme Court has yet to hold that any exception to Ackermann is proper. If one is possible, the circumstances must be compelling, for reopening a judgment adds to the cost and postpones the completion of litigation. Judge Boudin astutely remarked that "there is good sense — as well as much precedent — to make this the rarest of possibilities. Decisions constantly are being made by judges which, if reassessed in light of later precedent, might have been made differently; but a final judgment normally ends the quarrel. Indeed, the common law could not safely develop if the latest evolution in doctrine became the standard for measuring previously resolved claims. The finality of judgments protects against this kind of retroactive lawmaking." Biggins v. Hazen Paper Co., 111 F.3d 205, 212 (1st Cir.1997) (footnote omitted; emphasis in original).

Polites raised the possibility that "a clear and authoritative change in governing law" would justify reopening. That door was closed again in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). After the Supreme Court adopted a new approach to the statute of limitations for securities suits, see Lampf Pleva Lipkind Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), many district courts dismissed cases as untimely — and the plaintiffs did not appeal, for under Lampf they had no chance of success. Congress then reinstated the pre-Lampf approach for all cases filed before that decision was announced — in other words, the legislation made Lampf non-retroactive. Cases dismissed between Lampf and the new statute were to be...