What’s done is done. No turning back. You can’t go home. Unreviewable play. No breakfast balls. All simple phrases, all meaning the same thing—finality.

The law certainly knows something about finality. That was made clear once again in Juday v. Merck & Co. (In re Zostavax (Zoster Vaccine Live) Prods. Liab. Litig.), 2018 U.S. Dist. LEXIS 212086 (E.D. Pa. Dec. 21, 2018). In Juday, plaintiffs brought a product liability suit against Merck based on an alleged allergic reaction after receiving Merck’s shingles vaccine. Merck moved for summary judgment. The trial court granted Merck’s motion, holding that plaintiffs’ claims were time-barred. The appellate court agreed. The fat lady was singing.

Apparently, the plaintiffs didn’t hear her. They went back to the trial court and filed a motion under FRCP 60(b) to vacate the judgment and restart the litigation. They wanted a do-over.

They gave two reasons.

First, they argued that there had been a significant change in circumstances after the court entered its judgment. Specifically, the Judicial Panel on Multi-District Litigation had ordered the formation of an MDL to address claims against Merck regarding its shingles vaccine. Relying on language in FRCP 60(b)(5), plaintiffs argued that the existence of the newly-minted MDL meant that it was “no longer equitable” to “prospectively” apply the pre-MDL judgment against plaintiffs. Rather than attack this questionable reasoning, the court simply noted that its summary judgment order, unlike an injunction or consent decree, had no “prospective” effect whatsoever. It just dismissed plaintiffs’ case:

The judgment entered against the plaintiffs in effect simply dismissed their case. The judgment ended the action and imposed no future obligations on any of the parties. There is nothing prospective or ongoing about it.

Second, Plaintiffs argued that their previous lawyer took no depositions and propounded no discovery before Merck filed its summary judgment motion, and that these failures were extraordinary circumstances that warrant vacating the judgment against plaintiffs. The judge disagreed, noting that, while courts have invoked FRCP 60(b) to vacate judgments for counsel inadequacy, those courts did so based on much more egregious circumstances. In one decision, for instance, a court vacated a judgment under FRCP 60(b) because the party’s lawyer actually failed to respond at all to a summary judgment motion. In fact, he failed to file responsive pleadings in 51 other cases. This failure to respond to the very motion that ended the litigation, along with similar failures in 51 other cases, was sufficient to constitute extraordinary circumstances

Here, on the other hand, the plaintiffs’ lawyer did in fact oppose Merck’s summary judgment motion. He just lost. The court held that this was much less an extraordinary circumstance and much more a case of, as he called it, “buyers’ remorse.” Unfortunately for plaintiffs, however, all sales are final.