The Eleventh Circuit’s recent decision in In re Engle Cases, ___ F.3d ___, 2014 WL 4435893 (11th Cir. Sept 10, 2014), although involving cigarettes rather than prescription medical products, rips the scab off shoddy practices that plague many mass torts and are inherent in the other side’s solicitation-based approach to such litigation.  Basically, the soliciting firms don’t give a hoot about either their clients or their cases – all they want is numbers.  More “plaintiffs” drives up both the nuisance value of the litigation (which can be astronomical in mass torts involving thousands of would-be litigants) and increases the influence of the lawyers filing such cases as they jostle with other plaintiffs’ firms for fees.  The practices that the Eleventh Circuit condemned in Engle Cases are like Gresham’s law gone wild, disadvantaging ethical plaintiffs’ firms (no, that’s not an oxymoron), not to mention defendants.

Engle involved hundreds of cases (you’ll see why it’s difficult to describe them as “plaintiffs” in a moment), filed in the aftermath of the Florida Supreme Court’s decision in Engle v. Liggett Group., 945 So.2d 1246 (Fla. 2006), which purported to change the cut-off date for a class action settlement, among other things.  See Engle Cases, 2014 WL 4435893, at *2 (discussing that decision). Since we once worked on Engle at a prior firm, that’s all we’ll say about the legal background.

Engle touched off a plaintiffs’ side feeding frenzy, part of the aftermath of which the Eleventh Circuit was tasked with cleaning up.  Of these cases, 588 were filed in the names of people who were already dead.  Engle Cases, 2014 WL 4435893, at *1.  Dead people aren’t sui juris – the dead have no standing to sue – as we’ve discussed several times (links here) when a few pre-deceased plaintiff were discovered in the Aredia/Zometa litigation, and their ostensible counsel were sanctioned with costs as a result.  As the Eleventh Circuit bluntly put it, “[a]s any lawyer worth his salt knows, a dead person cannot maintain a personal injury claim.”  Engle Cases, 2014 WL 4435893, at *1.

588 already dead plaintiffs?  The mind boggles.

That’s not all.  160 other persons filed loss of consortium claims relating to these pre-deceased plaintiffs.  Loss of consortium claims are “derivative” – they fall when the injured person’s claim fails.  Id. The court also mentions two wrongful death cases filed beyond the absolute 2-year Florida statute of limitations for such claims.  Id. Compared to the other numbers, that sounds small, but it’s another example of the filing of blatantly invalid actions.

The trial court dismissed all these cases.

Amazingly, the plaintiffs appealed.  Only in an MDL.

As the Eleventh Circuit points out, these dismissed cases were just the tip of the iceberg.  Counsel treated the filing of complaints like throwing mud against the wall – seeing what would stick.  Other problems the opinion mentions:

• wrongful death claims filed by “survivors” of smokers who were still living;
• cases filed as a result of “clerical errors”;
• multiple cases filed for the same person;
• cases filed for people the law firm had no contact with;
• claims that had already been adjudicated by another court;
• cases filed for people who didn’t want to pursue a lawsuit;
• claims filed long after the relevant limitations period had run.

Engle Cases, 2014 WL 4435893, at *1.  Rule 11 – where are you when we need you?

The underlying problem was that counsel for these “plaintiffs” solicited and received more cases than they were capable of handling.  Faced with a filing deadline, they simply filed complaints for everybody, including for hundreds (if not more) persons that they were not even in contact with.  The district court displayed the patience of Job – for a long time it tried to get the plaintiffs to do after filing, what Rule 11 requires them to do beforehand, that is, to perform basic investigation of their cases.  Only when plaintiffs refused even to contact their supposed “clients” to verify information, and withheld adverse information from the special master, did the district court turn to involuntary dismissals and Rule 11 certifications.  The Eleventh Circuit lays out the gory details at great length in its opinion, id. at *3-16, for anyone who wants to read it.  It makes for fascinating reading because rarely has a court so thoroughly exposed these sorts of mass tort plaintiff shenanigans. But for present purposes, what’s important to us isn’t the details, but the outcome.

The Eleventh Circuit affirmed every single dismissal.

As to the already dead plaintiffs, the 588 complaints were all “nullities.”  There were no grounds for relief from dismissal because it was not “understandable,” as required by Fed. R. Civ. P. 17, that the same lawyer could make the same “mistake” 588 times.  Engle Cases, 2014 WL 4435893, at *18.  It was obvious that hundreds, if not thousands, of cases were filed with no pre-complaint investigation to speak of:

We are not told what [plaintiffs’ counsel] did to keep up with its clients . . ., how many of those clients it lost touch with . . ., what efforts it took . . . to reestablish contact, or how many of these missing clients it failed to contact before a lawsuit was filed on their behalf. . . .  Nor are we told what information [counsel] used to draft complaints for the missing clients, when those clients had last been in contact with the firm, or what efforts were taken to update client information and otherwise investigate the validity of their cases.  And [counsel’s] declaration did not even mention, much less explain, how his firm came to file personal injury cases on behalf of [persons] . . . who obviously did not contact his firm to request representation.

Id. at *21. “Counsel had more than one opportunity to build a record,” but failed to do so.  Id.  Nor did the court accept the disappearing act of original counsel – not showing up at the hearing so that subsequent counsel could “claim[] ignorance” of everything that went on, or didn’t go on.  Id. When counsel were finally forced to respond after defendants instituted Rule 11 proceedings, what they said was “incomplete or conflicting on nearly every relevant point.”  Id. at *22.  Again, the details are in the opinion.  One thing that did come out is that counsel filed over 100 lawsuits on behalf of persons “whom he presumably knew to be dead,” because there had been contact with the families.  Id. at *23.

On this record, dismissal of the already-dead-plaintiff cases was eminently proper – indeed required – by the Rules of Civil Procedure:

Rule 17 was not promulgated to allow lawyers to file placeholder actions . . . to keep a limitations period open while they investigate their claims and track down the proper parties.  If we were to adopt the approach plaintiffs’ counsel propose − and thus compel courts to allow substitution any time the real plaintiff is waiting in the wings − we would read this limitation out of existence and enable, in fact encourage, lawyers to file complaints without proper authorization or investigation.  Such a result would run counter not only to the policy underpinnings of Rule 17, but also those of Rule 11.

Engle Cases, 2014 WL 4435893, at *24 (footnote with complete text of Rule 11 omitted). The court held, with remarkable restraint, that counsel’s inability to track down its own clients before the Engel filing deadline “was at least partially a problem of its own making” because they “signed up so many clients.”  Id.

The Eleventh Circuit then told it like it is.  Counsel cannot use the volume of their own solicitation of clients as an excuse to avoid their obligations under Rule 11.  Every defense lawyer in a mass tort case should take the following words to heart – and make the other side live up to their fundamental obligations as lawyers:

[U]nforeseen hardship . . . did not excuse [plaintiffs’ counsel] from his Rule 11 obligations at the time of filing, nor do they give plaintiffs’ counsel an automatic right to substitution now. . . .  The solution to managing these types of mass actions is surely not that the standard of care diminishes as the number of cases grows.  If we were to hold that plaintiffs’ counsel are entitled to substitution solely on account of the large volume of cases they filed, we would invite the same result in every mass tort action.  In fact, we would give lawyers an incentive to tack on unauthorized and uninvestigated claims; for if sheer volume relaxes the requirement that a lawyer investigate the facts alleged in his complaints before filing them, then bulk filing like [counsel’s] becomes self-justifying − a practice we would never accept in a single case would become more palatable the more times it is repeated. We decline to adopt such an approach.

Engle Cases, 2014 WL 4435893, at *24 (emphasis added).  That’s the key.  Solicitation of massive numbers of plaintiffs does not give counsel warrant to ignore either their clients or their obligations to the judicial system in a “mass tort,” any more than it would “in a single case.”

Damn straight. It’s our job to hold the other side to the standards set by the relevant rules in mass tort litigation.

The Eleventh Circuit turned its attention to what may be an even more egregious failing, that being counsel’s concealment of their initial “mistakes” by “failing for over four years to bring their 588 mistakes to the District Court’s attention.” Id. at *25.  Their “four year silence” constituted “undue delay, bad faith or dilatory motive” justifying refusal of any Rule 15 right to amend. The Eleventh Circuit condemned a common plaintiff-side tactic in mass torts – the hiding of meritless cases in the shadows of the sheer numbers of plaintiffs while hoping for a settlement before the litigation rocks are turned over and light is shined on what lies beneath. In pursuit of that tactic in Engle Cases, “plaintiffs’ counsel opposed the defendants’ initial request that they submit basic information about their cases, including whether the named plaintiff was still alive.”  Id. at *26.

The notion that lawsuits were filed on behalf of people who were dead, and in some cases dead for a long time . . . one of the plaintiffs had been dead for 25 years, and the notion that those lawsuits could be filed and then because so many lawsuits were filed, we, as an accommodation and as a case management tool, stayed those cases so we could try to start to get a hold of them and that now becomes the reason that the plaintiffs were freed of any obligation, if that obligation did not exist before the date of filing, but were now freed of all obligation or any obligation to determine whether their client was a living, breathing human being or not.

Really?

We embrace the District Court’s view on this point.

Id. at *27 (quoting adopting district court rationale).

Engle Cases thus demonstrates why Lone Pine orders should be the presumptive default option in mass torts. Plaintiffs’ counsel should not be allowed to swamp the judicial system with filings and thereby conceal that the majority (often the great majority) of the cases being filed aren’t worth the paper the complaints are printed on.

Delay (here for four years) in discovering meritless cases isn’t “in the interest of efficiency.”  Id. at *28.  “It is not plaintiffs’ counsel’s place to decide what’s best for the litigation.  As officers of the court, they were duty bound to inform the court of the information in counsel’s complaints that they knew to be false.”  Id. Even in the absence of prejudice (and the settlement pressure exerted by the pendency of hundreds of bogus cases should be per se prejudice), “a district court has discretion to deny leave to amend when the moving party’s delay was the result of bad faith, dilatory tactics, or sheer inadvertence, or when the moving party offers no adequate explanation for a lengthy delay.”  Id.

[Plaintiffs’ counsel] have no excuse for withholding that information from the court.  It’s clear that if the court hadn’t ordered plaintiffs’ counsel to submit the questionnaires, plaintiffs’ counsel would have continued to sit on that information for years until the court activated these cases for trial. . . .  But to say that, having unearthed plaintiffs’ counsel’s mistakes, the court was then required to grant them leave to fix those mistakes under Rule 15(a)’s command that it do so “when justice so requires,” is, to put it bluntly, absurd.

Id.

At minimum, trying to hide meritless cases in hopes of evading review should result in dismissal.  But since the cases were worthless to start with, there still needs to be more incentive to prevent this improper tactic.  The Eleventh Circuit provided one. Counsel claimed to have resurrected some plaintiffs previously thought dead.  The appellate court held that, in light, of the protracted failure to investigate on a timely fashion, dismissals of those actions would not be disturbed:

We decline to grant what is effectively a request to reopen the questionnaire process to correct errors that plaintiffs’ counsel have only now discovered.  They have had ample opportunity to check their clients’ dates of death.  They had over four years . . . to discover and confirm the status of the plaintiffs named in their lawsuits.

Engle Cases, 2014 WL 4435893, at *29.  Perhaps this will be a teachable moment.

Turning to consortium claims relating to the pre-deceased plaintiffs, the Eleventh Circuit held that these plaintiffs could not, after all this time, try to convert these derivative claims into free-standing actions.  Throughout the protracted proceedings, “nobody questioned that the fate of the consortium cases was tied up with the fate of the personal injury cases they derived from.”  Id. at *30.  Failure to pay attention to these cases was not an excuse.  Counsel “cannot now claim to have been surprised by the court’s ‘inadvertent’ dismissal of these cases simply because they later thought up an argument as to why those cases shouldn’t have been dismissed.”  Id.

The fact of the matter is that the genesis of these invalid consortium cases is identical to that of the invalid personal injury cases they derived from.  They all stem from [plaintiffs’ counsel’s] mass filing and they all sat on the docket for years until the court ordered plaintiffs’ counsel to submit the information it had been asking for all along. Plaintiffs’ counsel did not come forward with any new reasons why the court should have allowed them to amend these consortium claims 5 years after they were filed.

Id.

Finally, as to the two statute of limitations-barred wrongful death cases, the same failure to investigate (or even to include dates of death in the original complaints), combined with years of delay and obfuscation, justified denial of any right to amend.  Id. at *31-32.

Maybe Engle Cases is an extreme example, but the problem this litigation exemplifies – massive solicitation of would-be plaintiffs, combined with utter disregard of pre-filing obligations such as Rule 11 – is present in just about every mass tort.  In Engle Cases, out of the “4500 cases” originally filed, in the end “we are dealing with 29 − and heading to 26.”  2014 WL 4435893, at *9 n.14.  The dirty little not-so-secret of mass tort practice is that the great majority (here it looks like more than 99%) of the cases clogging up the courts would be thrown out with little or no discovery if brought individually.  It is long past time for courts to institute procedures, such as Lone Pine orders in all MDLs, requiring Rule 11 certifications (as was done in Engle Cases), and cost-shifting sanctions (which we hope will be the next round in this litigation), to de-incentivize the deliberate filing of garbage cases.