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What is going on in Nuvaring? Defendant first moved against Plaintiffs’ “master” complaint. Plaintiffs withdrew it. Then it moved against Plaintiffs’ individual complaints (all 200+ of them). Now the court won’t hear those either. No wonder our eyebrows go up a little more with each ruling. (Here, here, and here). At this point, we’re afraid we might freeze into a permanently supercilious (literally, Latin for “raised eyebrows”) skepticism of anything coming out of that MDL.
To review:

  • In November 2008, shortly after the the first MDL conference, Defendant asks for a Master Complaint so that, inter alia, Rule 12 challenges could be streamlined. The court agrees. So far, so good.
  • Plaintiffs then file a Master Complaint that falls far short of Rule 8, Rule 9, Iqbal, and Twombly. So far, so predictable.
  •  Defendant then files Rule 12 motions. One motion seeks to strike class allegations. That one wins. But the motion challenging the pleadings under Rules 9(b) and 12(b)(6) is denied. Check that – it’s sidestepped. The merits remain elusive because the Master Complaint was “simply meant to place in one document all of the claims at issue in this litigation.”  In re Nuvaring Products Liability Litigation,  2009 WL 2425391, at *2 (E.D. Mo. Aug. 6, 2009).

And bad, bad, Defendant. Shame on you for not seeking a Master Complaint for a year (forget that there wasn’t even an MDL for a lot of that time), and why did Defendant stop answering the complaints and start moving against them?

Well, duh. Twombly/Iqbal. You can’t be estopped from filing a Rule 12 motion.

And, as we pointed out before that sort of reasoning will make defendants leery of doing anything other than file motions. Be careful what you ask for, you just might get it.

  • Next, Defendant seeks certification of the first order for interlocutory appeal, so that the Eight Circuit could address whether MDL master complaints are somehow immune from the pleading requirements of Rule 9, Iqbal, and Twombly.
  • That gets some action. In October 2009, the court denies the request to certify – and strikes the Master Complaint.  In re Nuvaring Products Liability Litigation, 2009 WL 3427974 (E.D. Mo. Oct. 23, 2009).  Interesting.

Our response was to express relief that the MDL judge “came around.” It looked like a retreat from the untenable position that defendants can’t move against master complaints (otherwise, why have them?). Master complaints can be an efficient tool for separating the pleading-wheat from the pleading-chaff (and we’re betting that most of the Nuvaring cases – like most MDL cases everywhere – ain’t wheat), but if a court would rather plow under the individual complaints one at a time, that’s OK.
In sum, that looked like a viable procedural choice of to how to undertake motion practice.
How wrong could we be?

Well … not as much as it appears; at least not at the beginning. We did correctly predict what Defendant would do (we are defense lawyers, after all). We said Defendant “will now predictably file motions to dismiss each of the hundreds of individual cases pending in the Nuvaring MDL.” (Did you see that word “predictably”? See, we read the rules and cases and occasionally confront reality.)  But the court was shocked, shocked that Defendant actually moved against the usual suspects – the individual complaints. Here’s the kicker. Resolving Rule 8/9/12 motions against individual complaints “necessarily sidetracks the parties and the Court from the main goal of this MDL proceeding which is the expeditious and efficient discovery over the claims which are properly pleaded.”  In re Nuvaring Products Liability Litigation, 2009 WL 4825170, at *2 n.3 (E.D. Mo. Dec. 11, 2009).
Defendant is damned if it does and damned if it doesn’t. Can anyone spell “m-a-n-d-a-m-u-s”?
Never mind that most of Plaintiffs’ claims are probably not properly pleaded. Never mind that Plaintiffs undoubtedly have the usual inventory of vague, schlocky claims, and it’s that inflated inventory – not adherence to pleading rules – that’s the real burden on the administration of the MDL. What happened to the comment in the order striking the Master Complaint? That’s the order that stated it “will allow the parties and the Court to focus on the dismissal motions filed in the individual cases.”  Nuvaring, 2009 WL 3427974, at *1 (Oct. 23, 2009).
That’s the backstory. When actually faced with defending their pleadings, we guess that Plaintiffs started bleating. They took the usual snippets from the Manual for Complex Litigation and some stray cases (we’ll bet about summary judgment – not pleadings) to argue that an MDL should be only about common issues. Translation – Plaintiffs get to take millions of dollars of “common” discovery from Defendant (at Defendant’s expense) and Defendant isn’t allowed to do anything at all. By contrast, Plaintiffs, in terms of both testing their pleadings and discovering their facts, want a free ride straight through to remand. Thus, the bloated inventory of specious cases doesn’t get thinned out, nor does each case’s bloated inventory of specious allegations. Thus, the incentive is created to park crummy cases where they won’t get tested. As we said before “build it and they will come” applies to MDLs – especially if they’re managed like Nuvaring is being managed.
Sorry, but tying both of an MDL defendant’s hands behind its back doesn’t make sense. And it is not the law. An MDL judge’s “most important function in the early stages of litigation management” is “to press the parties to identify, define, and narrow the issues.” Manual for Complex Litigation (Fourth) section 11.13.
That means MDL courts are supposed to cut down the pleadings to what’s actually in dispute. Rule 9, Iqbal, and Twombly shouldn’t vanish in an MDL. No way – the need to police the pleadings is ever more crucial the huger any given piece of litigation gets, and there’s nothing huger (is that a word?) than multi-district litigation. While an MDL “seeks to promote judicial economy and litigant efficiency by allowing the transferee court to preside over matters common among all cases” and MDL courts “typically do[] not rule on cumbersome, case-specific legal issues,” Nuvaring, 2009 WL 4825170, at *2 (quoting In re PPA Product Liability Litigation, 2004 WL 2034587 at 2 (W.D. Wash Sept. 3, 2004)), that’s not what’s going on here.
The PPA order involved side-show motions by minor defendants. It most certainly did not involve the core of the MDL litigation itself – whether the plaintiffs’ claims against the target defendant were properly pleaded at all. Early decision of core pleading issues is the essence of MDL management – as the Manual explicitly states. Look at PPA, for instance. There are many orders in that litigation that did resolve case-specific issues, when the primary manufacturer defendants moved to dismiss or moved for judgment on the pleadings against particular claims in particular plaintiff’s cases. See, e.g., In re PPA, 2006 WL 1442168 at 4 (W.D. Wash. 2006) (one of many). PPA doesn’t justify the sort of abdication of judicial responsibility that the latest Nuvaring order seems to be contemplating.
It doesn’t have to be that way. Common pleading deficiencies could have been addressed via the Master Complaint. Even without a master complaint, it’s not like each case is sui generis (that’s lawyerspeak for “completely different”). No, we’re sure that, since the same lawyers are filing complaints about the same product (that’s why there’s an MDL to begin with), there are patterns to the allegations and thus patterns to the pleading deficiencies in Plaintiffs’ complaints. Thus the pleading motions could be grouped, and addressed in a group fashion. That’s what bellwether trials do, and the same sorts of creative procedural approaches are available at earlier stages of litigation.
It might take some work – but it’s not looking at more than 200 complaints seriatim (that’s lawyerspeak for “one by one”). And it’s work that has to be done by someone at some time. It’s hard to see the sense of kicking that can down the road to hundreds of remand courts. What do you think remand judges across the country will think if they get back bunches of cases that, after years in an MDL, still have pending Rule 12 motions?
How about another prediction? We’re willing to bet that, if Plaintiffs get a free pass to discovery no matter what their pleadings look like, the Nuvaring MDL caseload will increase dramatically. Plaintiffs’ lawyers aren’t stupid. If the MDL becomes an open kennel, they’ll herd all their woofers to St. Louis.
It’s no wonder Nuvaring made our Worst Ten Decisions of 2009 list.