Regular readers of this blog know that we have a pretty jaded view of many MDLs. Obviously consolidation makes sense, at least on paper, in terms of efficiency and the best use of scarce court resources.  But, in practice, many MDLs promote a litigation “mob mentality,” in which the merits of individual cases are not important at the outset and, in the world of “settlement inventories” and “mass settlements,” may never draw the scrutiny of the judge or anyone else.   Though we continue to hope that “Lone Pine” orders will burgeon and raise the standards for plaintiffs seeking to fly under the radar and await settlement, many MDLs remain “safe havens” for plaintiffs who can’t satisfy the burden of proving their claims.

And a recent decision from the hip implant MDL does nothing to disturb this reality. In that MDL, a longstanding “Explant Preservation Order” requires preservation of hip implant devices removed from plaintiffs during explant surgeries.  The order requires plaintiffs to “make good faith efforts to ensure that [medical facilities] preserve” explanted devices and provides options for plaintiffs’ counsel to claim devices within 60 days of explant or, in the alternative, for the devices to be sent to the defendants.  It  requires all parties to handle explanted devices in accordance with a written protocol or consistent  with “methods and practices accepted by those in the field of inspection and testing of orthopedic devices,” to notify each other of devices in their possession before the date of the order, and to make devices available to each other after inspection and testing.   All of this, obviously, ensures that the critical evidence in this product liability MDL is preserved and handled in a fair and consistent manner.

In Marquis v. Biomet, Inc., et al., 2017 U.S. Dist. LEXIS 28465 (N.D. Ind.  Mar. 1, 2017), the defendants moved for summary judgment against six plaintiffs.  Five of these plaintiffs had had their devices explanted before they filed suit, or after they filed suit but before their cases were transferred into the MDL, and did not know what happened to their devices after they were explanted.  The sixth plaintiff had several revision surgeries.  During the first, the femoral head of her hip implant was replaced, and she asked for the explanted femoral head.   She explained, “I figured I paid for it.  I wanted it.”  She kept the femoral head in her closet, didn’t disclose on her fact sheet that she had kept it, and didn’t tell anyone she had it until her deposition.  The devices explanted during her subsequent surgeries were not preserved.

The defendants argued that, pursuant to Fed. R. Civ. P. 37, all six cases should be dismissed because the plaintiffs violated the preservation order. But, because the plaintiffs’ cases were not in the MDL at the time of their revision surgeries, the plaintiffs were not bound by the preservation order.   The court held, “Rule 37 is no help to [the defendants] because none of these plaintiffs violated a discovery order.  The court’s discovery orders can only direct behavior of parties who are able to comply.  As to a non-party, the court is merely shouting into a void, and there’s no logic in penalizing a person who doesn’t happen to hear it.” Marquis, 2017 U.S.  Dist. LEXIS 28645 at *16.

With respect to the plaintiff who took her femoral head home and kept it in the closet, the court acknowledged that she was obligated to disclose her possession of the device to the defendants once she joined the MDL, and also to handle the device in a certain manner. But, the court held, the plaintiff’s conduct did not warrant dismissal of her suit because “[t]here’s no clear evidence of delay [or of] ‘contumacious conduct’ [as case law requires], because she obtained the component before she was bound by the order and nothing suggests that her non-disclosure was more than an oversight.” Id. at *18.

The court also held that, though “fault is another avenue for the court to enter sanctions, even if not for the violation of a binding discovery order . . . [but] under the court’s inherent powers,” there was no evidence that any of the plaintiffs “acted at all unreasonably, let alone to an extent justifying dismissal.” Id.

Finally, the defendants argued that the plaintiffs should suffer spoliation sanctions because they “knew or should have known that litigation was imminent.” Id. at *19.  But the court held that there was no evidence that any of the plaintiffs acted in bad faith or with intent to hide adverse information, so the prerequisites for spoliation sanctions were not satisfied.

And so the court denied summary judgment as to all of the plaintiffs. In a somewhat uncharacteristic fit of reason, we can see that a discovery order can’t bind someone not yet subject to it.  But the net result of all of this is that plaintiffs are allowed to move forward with claims that devices were defective – and, eventually, to stretch out their hands as the payment train approaches – when they have discarded the only tangible evidence that could prove or disprove the existence of a defect.  Litigation isn’t public assistance.  Plaintiffs have the burden of satisfying the elements of their claims, and, except in the mass tort space, claims not supported by evidence cannot survive.  Recently, we posted about a bill, currently wending its way through committees, that would attempt to right this ship.  We remain watchful and cautiously optimistic.   And we’ll keep you posted.