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This is probably not the first you have heard of the recent ED Pa Daubert do-over in the Zoloft litigation, and it probably won’t be the last.  In re Zoloft Products Liability Litigation, 2015 U.S. Dist. LEXIS 1598 (E.D. Pa. January 7, 2015), was issued on Orthodox Christmas Day and the day after the feast of the Epiphany. If it were a Christmas present we’d return it for a bag of tube sox.  If it offered an epiphany, it was merely further proof that large plaintiff case inventories too often distort the law.  We do not like the decision one bit, but it is by a careful judge and it highlights a general litigation problem we’ve mulled over before, so it is worth a few extra words.  A couple of months ago, the judge had rendered a well-reasoned Daubert decision that completely precluded one plaintiff causation expert and limited the remaining three to opine only on biological plausibility.  We wrote about that opinion here, where we praised the judge for being “brave.”  We don’t know enough about the litigation to know if the earlier Daubert ruling amounted to a death blow, but it was obviously not the sort of thing that the plaintiff lawyers would brag about on their websites or Youtube telenovelas.

We cannot pretend to be surprised that the plaintiffs belatedly offered yet another general causation witness.  (For all we know, that lack of surprise might be construed as absence of prejudice to defendants.  Now that would really be perverse.)  The plaintiffs cited studies that existed when the earlier experts had been proffered (so why weren’t they used by the earlier experts?) as well as some newer studies.  But of course this was all too late.  The deadline for naming experts was passed and was retreating fast in the rear view mirror.  Accordingly, the plaintiffs sought to amend the scheduling orders so as to permit their expert-come-lately to enter the case and save the plaintiffs’ causation bacon.  We also cannot pretend to be surprised that the defendant pointed out that the plaintiffs had had ample opportunity to select expert witnesses and were now simply seeking a Daubert do-over after an unfavorable outcome.  But we must confess to being surprised that the judge permitted the Daubert do-over.  It is not a pleasant surprise.

Did we mention that this litigation is an MDL?  That ends up being an important, if not dispositive, fact.  Indeed, the court said as much:  “Had this issue arisen outside of the MDL context, this argument [that is, the defendant’s argument] may have carried the day.” But it didn’t.  Why?  The plaintiffs argued that a ruling preventing them from adding the late expert would be a discovery sanction under Fed. R. Civ. P. 37(b)(2)B).  That Rule requires a weighing of prejudice, disruption of the orderly/efficient trial of the case, bad faith, and the importance of the evidence.  Was a Rule 37 analysis truly necessary here?  Exclusion would not have been a sanction, but just a straight-on application of existing court orders.  In any event, the plaintiffs were certainly messing with the orderly/efficient trial of the case.  The court here does not say very much about that factor.  Instead, the court saw no evidence that the plaintiffs had acted in bad faith by purposely proffering weak experts at the outset, as a kind of sand-bagging or bait-and-switch.  If that’s how to define bad faith, maybe the court is right. Maybe.  The court also pointed out that the defendant was going to contend with this new expert in state cases – you know, where the expert designation deadlines had not been blown.  But the factor that was front-and-center as far as the court was concerned was the importance of the evidence.  Causation evidence is always important. But that importance, in the court’s view, was enhanced here because of the MDL.   A lot of plaintiffs’ cases might vanish if the new expert could not ride in to the rescue.  Therefore, while the court acknowledged that it should not provide a plaintiff with “an open-ended and never-ending opportunity to meet a Daubert challenge until [the] plaintiff gets it right,” it was concerned whether “all of the implications for the MDL as a whole have been addressed.”

In the end, the plaintiffs were allowed to thumb their nose at the expert designation deadline simply because there were so many plaintiffs in the MDL whose cases would have been affected by an adverse outcome.  And that is the thing that is so pernicious about this case, and aggregated actions in general.  In theory, an MDL is about enhancing the efficiency of litigating lots of cases.   As defense lawyers, we like it when an MDL helps ensure that our client’s witnesses will be deposed only once.  We like it when there are consistent discovery rulings, as opposed to a crazy race around the country and race to the bottom where plaintiff lawyers keep trying to find a judge who will do something crazy and oppressive.  But we don’t like it so much when plaintiff lawyers create huge case inventories (which invariably turn out to have a crappola rate of greater than 70%) and then argue that the sheer size of the inventory means that the defendant must forego quaint niceties such as meaningful discovery of the merits of individual plaintiffs’ cases — or, as in the Zoloft case, that the sheer size of the inventory means that the plaintiffs should get much more procedural leniency.  If an MDL is so much more important, it is also so much more important for the defendant.  If there is to be more leniency, does it go both ways?

Blogger emeritus Mark Herrmann used to say that MDLs are like the Field of Dreams: if you build it, they will come.  An MDL becomes a place for plaintiff lawyers to park scads of weak cases.  Herrmann also said that MDLs are like a Roach Motel: cases check in, but they don’t check out.  Some judges and all plaintiff lawyers view MDLs as settlement machines. The procedural form ends up having substantive consequences.  Parties now have incentives beyond efficiency to pursue or resist aggregated litigation.  Hegel wrote that quantitative differences eventually become qualitative.  Litigation can become so big that it lends itself to abuse or paralysis.  (It reminds us a little of a case we worked on as a young lawyer where a jury sat for so long — over a year – that the plaintiff lawyer figured out that he could do almost any batty thing in court and the judge would not dare declare a mistrial.  The bigness of the thing made it immune from any sort of control.)

But before we get too philosophical or downbeat about this topic, let’s return to this Zoloft case.  As we said up top, this is not the first time you’ve heard about this case, and it likely won’t be the last.  The plaintiffs were allowed to name their new expert, but that new expert has not yet survived a Daubert hearing.  This judge has a track record of treating Daubert issues seriously, and maybe the defendant’s victory has only been postponed — and with a bullet-proof record on appeal.