It can be easy to forget, but one of the most important things that happens early on in litigation is the establishment of a case management plan.  The contours of that plan can become critical in the weeks and months after it is instituted, and when a party expressly shapes or endorses the plan, that party is fairly bound by it.  So much is made clear by the Sixth Circuit’s recent opinion in In re: Bayer Healthcare & Merial Ltd. Flea Control Prods. Mktg. & Sales Prac. Litig. (Case No. 13-3514) (PDF).

The case below involved multidistrict, class-action litigation where the plaintiffs alleged that defendants Bayer Healthcare LLC and Merial Ltd. falsely advertised their topical pet flea-and-tick products.  Plaintiffs alleged that the products did not work as advertised because the products purportedly: did not disperse on pets’ coats in the promised time, entered the pets’ bloodstream when defendants indicated otherwise, and otherwise did not effectively control flea and tick problems.  After 10 separate actions were compiled into an MDL, the district court conducted a case management conference.  At that conference, the court concluded that the litigation was, at essence, a “one-issue case,” namely: “‘The plaintiffs are alleging that the defendants’ product does not autodisperse across the surface of the pet’s body as the defendants claim.'”  Plaintiffs’ counsel expressly agreed with the court’s summation, stating, “‘Your Honor, we agree.  That’s the basic simplicity of the case.'”  Expressing concerns about a long and costly discovery process, the district court crafted an evidentiary plan in which it required Bayer and Merial to provide expert studies showing that their products worked as advertised; if they did so, the burden would then shift to plaintiffs to show that such studies were fraudulent, incomplete or otherwise unreliable; summary judgment would then go to the plaintiffs if they carried their burden, or otherwise to the defendants.  Although the defendants expressed concern over the district court’s plan and suggested alternatives to it, plaintiffs’ counsel expressly endorsed the court’s plan.  That plan then became the core of the case management plan.

Defendants ultimately produced several studies supporting their advertising claims.  In response, plaintiffs produced information provided not by an independent expert but instead by one of the actual plaintiffs, which criticized the defendants’ studies.  Convening another status conference, the district court instructed Bayer and Merial to file a motion for summary judgment, and when plaintiffs subsequently sought broad-based Rule 56(d) discovery, the court largely denied that request, only permitting very targeted requests for consumer complaints — which, if sufficiently voluminous, the court concluded, might have shown that defendants had not relied on their studies in good faith.  When that discovery showed that only an “insignificant number of consumer complaints” existed, the district court granted summary judgment to Bayer and Merial.  Plaintiffs then appealed.

Writing for a panel that included Circuit Judges Sutton and White, Circuit Judge McKeague first explored the doctrines of waiver and invited error.  After reviewing the record below, the panel concluded that plaintiffs’ counsel had “agreed in open court with the district court’s framing of the case as a single-issue case.  They also agreed in open court with the district court’s proposed evidentiary plan.  And they failed to object to the case management order and, in fact, vehemently opposed the defendants’ motion for reconsideration of the order.”  Thus, the panel concluded that, “even if the district court committed error in framing the case around a single issue or in crafting an evidentiary plan, plaintiffs invited that error and they have waived their right to charge the district court with error on appeal.”  This fundamental ruling framed the panel’s resolution of plaintiffs’ other issues on appeal.  For instance, the panel rejected plaintiffs’ complaints about the district court’s limitations on discovery, finding no abuse of discretion “because the requested discovery went outside the scope of the single issue that the plaintiffs agreed determined the outcome of their case.”  With regard to the granting of summary judgment, the panel affirmed, finding that “[u]nder the terms of the case management plan, it is clear that Bayer and Merial met their burdens, but that the plaintiffs did not.”  Finally, when plaintiffs charged the district court with running afoul of Daubert, the panel found that, not only had plaintiffs raised that issue for the first time on appeal, but the case management plan turned on “whether Bayer and Merial’s studies substantiated their claims so as to establish a good faith basis for their advertisements, not whether those studies were admissible in court to prove some issue of fact.”  For all these reasons, the panel affirmed the rulings of the district court, including the grant of summary judgment to defendants.

The Bayer Healthcare ruling should serve as a reminder (and warning) to counsel that formation of a case management plan can be an extremely important moment in the life of a case, particularly if counsel help shape or expressly endorse that plan.  Where a party endorses an approach adopted by a lower court, it cannot simply turn around and attempt to gain relief as to that approach on appeal.

Squire Patton Boggs (US) LLP, the sponsor of the Sixth Circuit Appellate Blog, was co-counsel to Bayer in the district court and on appeal.