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We spend the vast bulk of our professional life working in the context of MDLs.   We know the drill:  plaintiff lawyers file hundreds or thousands or tens of thousands of cases.  At some point, the cream rises to the top in the form of “bellwether” cases – cases with enough merit that a plaintiff expert of (relative) repute can verify the injury and attest to a causal link between that injury and our client’s product.  But that leaves the vast bulk of the docket — plaintiffs who may have seen an ad on late-night television, or received a cold call, or heard that a friend made some money in a tort suit.  These cases will never be the focus of the plaintiff lawyers’ attention, and most will remain untouched until they queue up, hands outstretched, as part of a “settlement inventory,” unless defense counsel mount pro-active efforts (and expend their resources and the court’s) to weed them out through dispositive motions.

In recent years, MDL judges have become more aware of, and less patient with, this reality, prompting increasing (and laudable) use of “Lone Pine” orders. We love Lone Pine orders, as we’ve discussed here and here.  But Lone Pine orders are remedial – while they may eventuate in the dismissal of meritless cases, they do not operate, in any significant fashion, to deter the filing of such cases in the first instance or the failure to dismiss them when their lack of merit first becomes clear.

Two days ago, the Mentor Obtape MDL judge took the next step, in a groundbreaking order.  The judge did not mince words:

The Court has spent considerable time in this MDL deciding summary judgment motions when plaintiff’s counsel should have known that no good faith basis existed for pursuing the claim to the summary judgement stage. Some of these cases involved claims that were clearly barred by the applicable statute of limitations.  In others, plaintiff’s counsel was unable to identify a specific causation expert or point to other evidence to create a genuine factual dispute on causation.  And in some cases, counsel threw in the towel and did not even bother to respond to the summary judgment motion.  Nevertheless, the Court had to waste judicial resources deciding motions in cases that should have been dismissed by plaintiff’s counsel earlier – cases that probably should never have been brought in the first place.  Enough is enough.

The judge went on to state that any future order granting summary judgment in a case in which “no good faith basis existed for maintaining the action through the summary judgment stage” would include an addendum requiring counsel to show cause why sanctions should not be imposed. “Thus,” the court admonished, “it would behoove counsel to take a close look at your cases and decide whether you truly have a good faith basis for proceeding; and if you do not, dismiss the case.”  Of course, as the court clarified, sanctions are not warranted every time summary judgment is granted. “But if the deadline for identifying experts has expired and you still have no idea how you are going to prove specific causation, . . .[or] if you didn’t file the action until eight years after” the plaintiff learned the cause of her injury, “you may face a serious challenge showing cause as to why sanctions should not be imposed.”

The judge followed this edict with a thoughtful reflection on the evolution of the MDL process into “an alternative dispute resolution forum” creating incentives “for the filing of cases that otherwise would not be filed if they had to stand on their own merit . . . , in the hope that they will be “swept into . . . a global settlement, allowing them to obtain a recovery without [their] individual merit. . . being scrutinized” as they would if they were filed as individual actions. In the judge’s view, with which we heartily agree, “this attitude explains why many cases are filed with little regard for the statute of limitations and with so little pre-filing preparation that counsel apparently has no idea whether or how she will prove causation.”  (Here and here, in the same vein, you can see examples of our discussions of the abuse of master complaints in MDLs to avoid the TwIqbal scrutiny that individual claimants would receive.)  As a result, a structure that was established to promote judicial economy undercuts it instead.  The judge concluded that, while the benefits of consolidation may justify the continued formation of MDLs, “transferee judges should be aware that they may need to consider approaches that weed out non-meritorious cases early, efficiently, and justly.  The undersigned has struggled with the best way to accomplish that.  Hopefully, the robust use of Rule 11 will help.”

We applaud this thoughtful and well-reasoned exercise of judicial discretion based on a cogently- described scenario that we see repeated all too often in other proceedings.  We hope that other judges will follow suit to deter abuse of the MDL system.