Hah!

Two months ago, we raised an electronic eyebrow when we stumbled across In Re NuvaRing Prods. Liab. Litig., slip op., No. 4:08MD1964 RWS (E.D. Mo. Aug. 6, 2009). There, after the MDL Panel created a coordinated proceeding in Missouri for all of the NuvaRing cases, Judge Sippel ordered the plaintiffs to file a master consolidated complaint.

But when the defendants moved to dismiss that complaint, Judge Sippel demurred, saying that the master complaint was “simply meant to be an administrative tool . . . to place in one document all of the claims at issue in the litigation.” Id. at 3. Judge Sippel thus refused to rule on the motion to dismiss the master complaint.

In our typically classy way, we asked: “Really? Then why have plaintiffs file the thing? Isn’t that its primary use?”

Our class (or maybe the defendants’ briefs) paid off; on Friday, Judge Sippel came around. He wrote: “Because the master complaint was never intended to be the subject of motion practice I will vacate my order directing plaintiffs to file the master complaint and will strike the master complaint from this action.” In re NuvaRing Prods. Liab. Litig., slip op., No. 4:08MD1964 RWS (E.D. Mo. Oct. 23, 2009) (link here).

That’s an improvement.

There are two possible paths to take in an MDL: (1) Order the filing of a master complaint, and then use motion practice directed at that master complaint to try to resolve some issues, or (2) Do not order the filing of a master complaint, and deal with motion practice on an individual case-by-case basis. Most judges these days tend to the former; Judge Stippel chose the road less traveled by. But at least he’s now chosen an extant path, rather than hacking through inscrutable woods with a machete.

With the master complaint stricken, the defendants will now predictably file motions to dismiss each of the hundreds of individual cases pending in the NuvaRing MDL. Plaintiffs will have to defend each of the complaints under applicable state law and in light of the pleading standards articulated in Twombly and Iqbal. And the court will have to do a fair amount of work: It will have to analyze each complaint under the relevant state law and, to the extent the complaints pleaded under one state’s laws are not carbon copies of each other, will have to look at the individual allegations to decide whether each complaint satisfies the pleading standards.

As we said, that’s not necessarily an easy road. But at least it’s a road.

And we’re pleased to see that Judge Sippel’s earlier order, hinting that defendants cannot direct motion practice at master complaints, has effectively been taken off the books.

Litigating MDLs is tricky enough without having odd decisions create unnecessary procedural ambiguities.