We raised an electronic eyebrow last month when we stumbled across In re NuvaRing Prods. Liab. Litig., slip op., No. 4:08MD1964 RWS (E.D. Mo. Aug. 6, 2009) (link here).

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.

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.

Remarkable: First, the court orders the filing of the master complaint, and then the court refuses to use that master complaint as a vehicle to sort out which claims can proceed.

We were delighted to see that the defendants have now moved to certify the denial of their motion to dismiss for an interlocutory appeal to the Eighth Circuit. (Here’s a link to the opening brief; here’s a link to the reply.) To obtain certification, defendants must show that an order “involves a controlling question of law as to which there is substantial ground for difference of opinion” and “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. Sec. 1292(b).

None of those issues strikes our fancy as much as the underlying legal (and practical) principle: MDL transferee judges order plaintiffs to file master complaints to simplify pleading practice. If MDL transferee judges then refuse to allow motion practice aimed at those master complaints, (1) MDLs become less efficient, (2) defendants will file motions to dismiss each of the hundreds of individual complaints to secure the rulings they need (and are entitled to), (3) defendants will be less willing to agree to the creation of MDLs (since there’s less benefit to having them), and (4) the sky will fall. (Well, we’re not so sure about that last one, but we wanted to make sure you were still reading.)

The NuvaRing defendants provide legal authority for the assertions that we made in the preceding paragraph. (Except for the bit about the sky falling. For that, see Chicken Little.)

First, ample authority tells MDL judges that it makes sense to allow Rule 12 practice as to master complaints. For example, in Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Judges 4 (2009) (our discussion and a link to the Guide here), the MDL Panel itself recommends that case management orders “should include the usual interim breakpoints, e.g., filing of a consolidated amended complaint (where appropriate), filing and briefing on motions to dismiss . . . . ” And the Manual for Complex Litigation (Fourth) instructs judges overseeing complex cases (at Section 11.32) to “consider ordering that specified pleadings . . . are ‘deemed filed’ in other MDL cases . . . . The legal insufficiency of a claim or defense may be raised by motion for failure to state a claim . . . .”

Second, the NuvaRing defendants note that other MDL transferee judges in courts within the Eighth Circuit have granted motions to dismiss master complaints filed in MDLs. See In re Guidant Corp. Implantable Defibrillators, 2009 WL 1921902 (D. Minn. July 1, 2009); In re Medtronic, Inc. Sprint Fidelis Leads Prods. Liab. Litig., 2009 WL 294353 (D. Minn. Feb. 5, 2009). The defendants suggest that Judge Sippel should have done the same. (In one of our earlier posts on this subject, we looked more broadly than just district courts in the Eighth Circuit, and we found examples of MDL transferee courts all around the country ruling on motions to dismiss master complaints.)

Finally, the defendants raise the practical issue that, if motions directed at pleadings are not decided in a single ruling relating to a master complaint, then the defendant will file identical challenges to the pleadings in each of the hundreds of constituent cases in the MDL. Courts seeking efficiencies should be careful what they ask for; parties will have no choice but to follow court orders.

With luck, the Judge Sippel will certify this appeal, the Eighth Circuit will hear it, and this little glitch in MDL practice will promptly be corrected.