The unwieldy and generally unfair nature of multidistrict litigation has develop into a recurring theme on the DDL Weblog. We’ve got lengthy commented on the “in case you construct it, they’ll come” dynamic that results in a whole bunch or 1000’s of circumstances gathered, filed, after which parked in an MDL—all hoping to do as little work as doable whereas ready for a worldwide settlement. The plenty of circumstances being filed in and transferred to MDLs has created a now-familiar sample: MDLs usually begin by facilitating and permitting the amassing of much more circumstances, arguably below means which are exterior the Federal Guidelines of Civil Process. Take for instance “direct submitting” procedures, below which plaintiffs can file straight in an MDL transferee district with out regard to venue guidelines or private jurisdiction. Or how about “grasp complaints” that present an umbrella for 1000’s of plaintiffs to file their claims (generally by merely checking containers), with none real alternative to check the idea for any plaintiff’s declare. Some MDLs have even allowed plaintiffs to lodge their claims with out really submitting them, thus avoiding submitting charges in 1000’s of circumstances and probably permitting these claimants to attend and see. We might go on (and Bexis has, right here).
Sooner or later although, judges say sufficient is sufficient and begin drilling down on the plaintiffs’ circumstances and develop into much less forgiving. Our defense-side bias leads us to consider that the purpose of all that is to strain defendants into mass settlements, however we don’t wish to decide too harshly. Regardless of the motive, the foundations kick in in some unspecified time in the future and the plaintiffs not get a break.
That’s good, however our beef is that it takes far too lengthy. We wrote just a few weeks in the past a few good Lone Pine order entered within the Taxotere MDL—however solely after 4 years of urging by the defendants. One other current publish reported on a case the place the decide denied the plaintiff’s movement to amend her criticism. That was good and truthful too—however the plaintiff made her movement six years after submitting her criticism.
The latest instance is one other Taxotere case, one remanded from the MDL together with a whole bunch of different circumstances. The plaintiff in Sherratt v. Sanofi US Servs. Inc., No. #:23-cv-00580, 2024 U.S. Dist. LEXIS 33866 (D. Nev. Feb. 28, 2024), needed to take punitive damages discovery after discovery had lengthy been closed. We perceive why. Having failed below probably the most fundamental technique—lay low and do as little as doable whereas ready for a gaggle settlement—this remanded plaintiff might not cover within the weeds. So what higher method is there to coerce the defendant into paying extra in a person settlement than reopening discovery into “punitive damages.”
The district court docket on remand stated no. The MDL decide had allowed the MDL plaintiffs to conduct intensive normal deserves discovery in opposition to the defendant for the advantage of all MDL plaintiffs. That included discovery into points affecting punitive damages, with out regard as to if the relevant legislation in a given plaintiff’s case would really allow the introduction of such proof at trial. Id. at *2-*3. The plaintiff in Sherratt was current for all of this, however by some means they claimed that it was not sufficient.
The remand decide shut that down fairly shortly, first as a result of the MDL plaintiffs already took a boatload of discovery:
In accordance with [Defendant], the final deserves discovery in opposition to it remained open for 16 months within the MDL and included: “(1) the manufacturing of greater than 576,100 paperwork (or 6,320,000 pages) from 43 separate custodians, (2) depositions of 28 present and former . . . staff (together with . . . 30(b)(6) witnesses), and (3) responses to greater than 160 written discovery requests.” . . . [T]he discovery effort centered on what [Defendant] knew or ought to have recognized concerning the alleged harm on this litigation “throughout totally different useful areas inside the firm, together with pharmacovigilance, medical, security, regulatory, labeling, advertising and marketing and gross sales, amongst others.”
Id. at *3-*4. This description is beneficial and compelling, and most each defendant in an MDL is ready to roll out equally spectacular numbers. The linchpin, nonetheless, was that normal discovery closed greater than 5 years in the past:
[G]eneral deserves discovery in opposition to [Defendant] (which included punitive damages discovery) closed on December 15, 2018. Any remaining discovery was to be “case particular,” which was described as the gathering of data and depositions of the plaintiffs and plaintiff’s well being care suppliers, spouses, buddies, household, and case-specific knowledgeable discovery.
Id. at *4. The plaintiff couldn’t present (and didn’t even actually try to indicate) that extraordinary circumstances existed that might justify reopening normal discovery, together with punitive damages discovery. Id. at *5-*6.
You can see this as one case the place a plaintiff failed to satisfy his or her burden to obtain some particular dispensation, however we desire to see this as half of a bigger narrative. There are guidelines, and guidelines apply—simply not as quickly or as constantly as they need to. The plaintiff right here was not allowed to take additional discovery in opposition to the Defendant; one of many plaintiffs talked about above was not allowed to amend her criticism; and a complete bunch of plaintiffs within the Taxotere MDL now must adjust to a Lone Pine order and really reveal that they’ve even arguably viable claims.
So once more, the foundations apply, however why did it take so lengthy? That is our frustration with MDLs. We admire judges who promote effectivity and make use of some creativity in managing giant caseloads. However we proceed to consider that MDL judges can accomplish all that whereas predictably making use of the common guidelines of the highway alongside the way in which (and we will consider quite a few examples the place MDL judges have accomplished simply that). There isn’t a motive to attend.
