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Suppose you have a product liability MDL.
Individual lawsuits are arriving by the mailbagful.
You need a system to sort out which claims can proceed and which should be dismissed as a matter of law. What’s a judge to do?
On the one hand, you could order defendants to file motions to dismiss each of the hundreds of separate complaints and then start ruling on those motions one by one.
On the other hand, you could adopt a different, and typical, way of organizing the morass: Order plaintiffs to file a master complaint that pleads all of the claims plaintiffs want to pursue.
Order defendants to move to dismiss the master complaint.
And then decide the legal issues just once, for all of the cases.
(This system may not work for all claims and all legal defenses, since some defenses may depend on state law, which may vary by jurisdiction. But, at a minimum, motion practice directed at a master complaint can permit a court efficiently to decide some of the issues that cut across all cases.)
We just stumbled across In re NuvaRing Prods. Liab. Litig., slip op., No. 4:08MD1964 RWS (E.D. Mo. Aug. 6, 2009) (link here), which left us scratching our heads. There, the MDL Panel created a coordinated proceeding to administer the 150 individual lawsuits pleading personal injuries allegedly caused by using Organon’s contraceptive NuvaRing. The MDL transferee court granted (by consent) Organon’s motion requiring plaintiffs to file a master consolidated complaint. Organon moved to dismiss that master complaint.
So far, so good.
And then, the surprise: Judge Sippel concluded “that the filing of the master consolidated complaint in this action was simply meant to be an administrative tool to place in one document all of the claims at issue in this litigation. Neither Plaintiffs when they consented to filing a master complaint, nor I when I entered the order directing a master complaint to be filed, contemplated that Rule 12(b) motion practice would be pursued by Organon against the master complaint.” Id. at 3.
Really? Then why bother having plaintiffs file the thing? Isn’t that its primary use?
As support for this result, Judge Sippel cited In re Trasylol Prods. Liab. Litig., No. 08-MD-1928, 2009 WL 577726 (S.D. Fla. Mar. 5, 2009). We were curious, so we took a look.
(If Trasylol had sent us back to yet another case to figure this out, we would not have taken a further look. There are limits even to our curiosity. But Trasylol gave us the answer.)
The Trasylol MDL collected before one judge all of the cases pleading personal injury or death allegedly arising out of the use of the prescription drug Trasylol in certain heart surgeries. Plaintiffs (1) filed a master consolidated complaint to gather in one document all of the causes of action and also (2) filed “abbreviated short form Complaints for the individual cases.” Id. at *1. Defendants moved to dismiss the master complaint.
Unlike the NuvaRing court, the Trasylol court did in fact rule on that motion. But it used some loose language along the way that the NuvaRing court loosened even further.
The Trasylol court denied defendants’ motion to dismiss for failure to plead with particularity the fraud and constructive fraud counts of the master complaint. The court plainly thought that Rule 9(b) motions showed be viewed skeptically in the context of MDLs, because the defendants have been sued so many times for their conduct that, the court thought, they surely have a pretty good sense of what they’re alleged to have done wrong:
“The reality of this case is thus. There are well in excess of four hundred separate cases that have either been filed in, or transferred into, this district. Many of those cases are filed on behalf of more than one individual. . . . [T]he complaints go into detail about the dates of certain investigations, publications and/or inquiries wherein the Defendants had control over the transmission of crucial information to Plaintiffs or their healthcare providers. . . .At this stage of the litigation I prefer to assess the sufficiency of plaintiffs’ claims with substantial leniency, especially when the information that may or may not support Plaintiffs’ claims is largely within the control of the Defendants.”
Id. at *8.
We don’t like that result.
We think Rule 9(b) says what it says, and courts should apply it.
And we particularly don’t like courts inventing new rules for particular kinds of litigation. (This happened once before in the New York statewide Oxycontin proceeding, and we criticized the result there, too.) We understand that the court thinks it’s being practical: “Sheesh. I’ve got 400 lawsuits here. This isn’t just one complaint where the defendant doesn’t know what it’s being sued for. No reason to bother with the requirements of Rule 9(b) here.”
But the minute you write those words into a decision, you’ve changed the law. Now, any time plaintiffs prefer not to comply with Rule 9(b), they just have to gin up 400 cases and cite the newly-invented legal rule.
Don’t do this, judges! We understand your good intentions, but we don’t like the road that you’re accidentally paving.
But we digress.
The truth is that Judge Sippel then went on in the Trasylol MDL to dismiss the constructive fraud count of the master complaint on a different ground: “The Plaintiffs have presented no, and the Court is unaware of any, case establishing that simply producing drugs which will inevitably be ingested by an end-consumer patient, absent anything further, creates a fiduciary relationship and duty between a manufacturer and a patient. . . . Count VI is due to be dismissed.” Id. at *13.
So Trasylol doesn’t say that courts should refuse to rule on motions to dismiss master complaints in MDL proceedings. To the contrary: The court did rule on a motion to dismiss — granting it in part — in that very context.
Rather, the Trasylol decision shows (incorrectly, we think) some exasperation with the notion of a Rule 9(b) motion in the context of an MDL. But the court then (correctly) rules on the motion to dismiss and thus eliminates — efficiently, and once and for all — the claims for constructive fraud in all of the individual complaints.
Unless there was something going on in NuvaRing that isn’t explained in the opinion, we think the court should have ruled on the motion to dismiss that master complaint, too.