This post relates to the Vioxx litigation, in which Beck’s firm is involved. You therefore can’t blame Beck for this post; it’s being written entirely by Herrmann.

We’ve previously posted about the headaches caused when unrelated plaintiffs join their claims in a single complaint.

In the Vioxx litigation, Judge Fallon had originally permitted unrelated plaintiffs to join their claims in a single complaint. He has now learned from hard experience that this simply doesn’t work. Joinder poses “administrative complications” and “certain inefficiencies” that are avoided by requiring unrelated plaintiffs to file separate complaints.

It’s a shame that Judge Fallon didn’t provide a little detail about the administrative headaches caused by misjoinder; later litigants and judges could probably benefit from learning about his experience. But folks who have waded through massive misjoinders trying, for example, to select individual bellwether cases for trial can certainly empathize with His Honor. Misjoinder can make life hard.

On the other hand, misjoinder can also make life easy. Plaintiffs’ counsel of course prefer to file a single complaint that names hundreds of plaintiffs instead of hundreds of complaints that name single plaintiffs — think of the filing fees you save!

And defendants are sometimes willing to permit that misjoinder.

Orders authorizing misjoinder in MDLs save plaintiffs money on filing fees if they choose to file in the MDL. That incentive can attract plaintiffs into an MDL, rather than creating competing state court litigation, and can enhance the efficiencies that MDL proceedings sometimes enable. Defendants who prefer defending coordinated federal proceedings to multiple state court proceedings occasionally stipulate to allowing misjoinder at the pleading stage (although those defendants almost always oppose joinder of unrelated plaintiffs for trial purposes).

This issue is still a work in progress. As MDL judges experiment with allowing pretrial misjoinder, the judiciary will probably decide when, if ever, that approach permits the litigation to be managed more efficiently.