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Today we have a guest post from Reed Smith‘s Jaclyn Setili, about one of our pet peeves – MDL plaintiffs (and their counsel) who think they don’t have to do any work at all on their cases, and simply show up come settlement time with their hands out.  In this instance, they received a much deserved comeuppance.  As is the case with all our guest posts, Jaclyn deserves all the credit for what follows, as well as any blame.


At last, friends, it’s that time of year again. Time to dust off the sweater vest, memorize your favorite college football team’s schedule (Go Blue), and indulge in the ubiquitous pumpkin-spice-flavored everything.  In fact, just the other day as we were jogging along the Schuylkill River Trail, after an oppressively hot and humid summer, we glimpsed the first few yellow leaves of the year as they gently, and gracefully, made their journey to the asphalt, and our heart leapt with joy and relief.

Unlike spring, however, autumn is not a time for fresh hope or new beginnings.  Rather, the season reminds us of the inescapable promise that another year is nearing its eventual terminus.  A recent opinion from the Southern District of Florida, In re Denture Cream Products Liability Litigation, — F. Supp.2d —-, 2016 WL 4582185 (S.D. Fla. Aug. 31, 2016), encapsulates that idea:  the fundamental truth that every summer—like every lawsuit—must come to an end.  Winter, friends, is always coming.

In re Denture Cream is another order from the denture cream MDL, which we have covered on several prior occasions, i.e. here and here.  To remind you, the JPML consolidated multiple cases in MDL 2051 on September 12, 2011, finding that they all shared common questions of fact concerning allegations that the level of zinc found in certain brands of denture cream may cause copper deficiencies and neurological injuries.  The opinion we discuss today, however, involves a frequent bane of MDL defendants – the plaintiffs who try to lie back, hide in the weeds, do as little as possible, and share in an eventual settlement.  This time, it didn’t work out so well for those plaintiffs.

On May 20, 2013, the Court entered an amended scheduling order providing that all plaintiffs who filed cases after November 20, 2012, “shall identify and serve Rule 26 general causation report(s). Otherwise, these Plaintiffs shall be deemed to rely on the general causation expert reports submitted by Plaintiffs [through June 3, 2013].”  During expert discovery, the original MDL plaintiffs disclosed ten expert witnesses to establish general causation.  The target defendant moved to exclude all ten.  In the Daubert Order we previously discussed, the Court granted the defense  motion, and excluded all ten of plaintiffs’ general causation experts.  At that point, the majority of the MDL plaintiffs stipulated to dismissal, agreeing with the defendant  that the Order was case dispositive.

On June 15, 2016, the Eleventh Circuit affirmed the Daubert Order, and the defendant subsequently moved for summary judgment against the remaining plaintiffs, none of which had any legally admissible expert testimony on general causation.  A number of weed-hiders, however, including the six involved here, argued that they were not subject to the Daubert Order because their cases were transferred into the MDL after September 12, 2011.

The Court disagreed. It acknowledged that plaintiffs did not need to conduct case specific discovery or submit case specific expert reports, but the First Scheduling Order “made clear” that any plaintiffs who filed after November 30, 2012, were “required” to serve general causation reports, or else be “deemed to rely on” the general causation reports submitted by the other MDL plaintiffs.  Four of the six remaining plaintiffs filed or transferred their cases after November 30, 2012, yet they had stayed in the weeds, never serving any general causation reports, nor did they ask for an extension in which to do so.

The Court explained that the Eleventh Circuit recognizes two kinds of toxic tort cases:  (1) those where the medical community generally recognizes the toxicity of the substance in question and (2) those where it does not.  Given the Daubert ruling, this litigation was obviously in the second category, so the left-over plaintiffs were required to prove both general and specific causation via expert testimony.  Yet, the weed-hiding plaintiffs made the unfortunate (if predictable) decision to rely on the general causation reports already submitted, which were found to be inadequate; “[t]hus, as these Remaining Plaintiffs have failed to establish an essential element of their case, summary judgment is appropriate.”  2016 WL 4582185, at *4.  The Court added that granting summary judgment was preferable to transferring the cases back to the transferor courts to leave them with the dirty work, in order to ensure judicial efficiency and avoid requiring other judges to “learn the tortured factual and procedural histories from scratch.” Id.

Two of the weed-hiders got a little more time, although we doubt it will matter much. Their cases were transferred into the MDL before November 30, 2012; thus, the mandates of the First Scheduling Order did not apply to them.  The Court ruled that they would have one last opportunity to present expert testimony on general causation, but it is highly unlikely that these two, who were only along for the ride, can succeed where every other plaintiff in the MDL failed.  For the four dismissed plaintiffs though, their cases were laid to rest as conclusively as the last few rust-colored leaves of autumn.  That’s the risk of doing nothing in litigation.