Congress authorized multidistrict litigation “for the convenience of parties and witnesses” and to “promote the just and efficient conduct of such actions.”  28 U.S.C. §1407(a).  As we’ve documented in many posts in our MDL topic, the reality – at least in product liability mass torts involving prescription medical products – is so far from what Congress intended as to call the entire process into question.

Instead of convenience, we see the Rules of Civil Procedure being ignored on a massive scale to deprive defendants of motions practice, to postpone “case specific” defenses, and to force defendants not only to provide massive discovery of their own information, but also to shoulder discovery burdens, such as collection of medical records, that should be the plaintiffs’ responsibility.

Instead of “just and efficient conduct,” we see thousands of plaintiffs with weak to nonexistent cases parking themselves for years with no merits examination, while plaintiffs’ best cases are litigated in consolidated “bellwether” trials” (despite the statute limiting MDLs to “pretrial” proceedings) with legal and evidentiary rulings designed to produce huge verdicts that force defendants to settle, including all those weak cases that, without the MDL, would never have been filed in the first place.

Here are two more recent examples of MDL dysfunction.

In In re Biomet M2a Magnum Hip Implant Products Liability Litigation, 2019 WL 110892 (N.D. Ind. Jan. 3, 2019), the defendant brought the kind of case-specific dispositive motion that, outside of an MDL in all likelihood would have disposed of the cases. The defendant sought “summary judgment based on North Carolina’s repealed statute of repose” against seven North Carolina plaintiffs.  Id. at *1.  In the MDL, however, this case-specific motion was denied on the basis of not wanting to bother to figure out the law:

Early on in this multi-district litigation docket, I told the parties that I intended to leave sticky questions of state law to the courts that would try the cases, reasoning that those courts were more familiar than I with the governing law.  My second concern was the delay that would affect all cases in the docket as I tried to get up to speed on the laws and doctrines of each state involved in these proceedings.  After fulfilling my own prediction about delay on this motion, I have concluded that these North Carolina cases present issues that are best decided by courts more familiar than I with North Carolina law.

Id.  Talk about a government shutdown – all defense motions based on state law are selectively shut down in this MDL.  Thus, seven cases that, in the absence of MDL litigation, may well have been dismissed within weeks of being filed, instead survive to be parked in the MDL for who knows how long – probably until the pressure of numbers (including many other cases with “motion denied because I can’t be bothered” rulings) forces a settlement.

If “[a] federal district court sitting in North Carolina has a much better chance than I of getting the answer to this question right,” id. at *6, then by all means remand the cases right now.  It’s neither “convenient,” “just”, nor “efficient” to let likely meritless cases persist – and to force both sides, but particularly defendants – to expend time and effort on them – when without an MDL, this kind of excuse for refusal to decide a duly filed motion would never even be offered (short of exotic doctrines like abstention or certification of an issue to a state appellate court).  If it is too difficult, well, nobody forces courts to accept MDL assignments.

The second case, Weidenhof v. Zimmer, Inc., 2018 WL 7106980 (M.D. Pa. Dec. 28, 2018), demonstrates MDL-caused dysfunction at the other end of the litigation cycle – when all those meritless cases that have been flying under the radar in MDLs finally have to be dealt with.

Weidenhof was a solicited case that never belonged in the Zimmer Nexgen MDL at all.  This plaintiff had knee surgery in 2009 with a different device than those at issue in Nexgen.  Nonetheless, plaintiffs (husband and wife) “hired two law firms who filed a complaint on his behalf in 2012 in the Eastern District [of Pennsylvania].”  2018 WL 7106980, at *1.  That filing occurred on April 13, 2012.  Id.  “His case was transferred to a multi-district litigation court.”  Id.

Thereafter, Weidenhof sat parked in the MDL for two years with nothing happening – not even the most basic step of product identification.  The MDL defendants had to do the plaintiffs’ Rule 11 job for them, the investigation of such a basic legal requirement.  See Id. at *2 (“On July 1, 2014, Defendants filed a Motion requesting that the MDL Judge issue a Suggestion of Remand because the devices implanted in Mr. Weidenhof’s knee did not fall within the scope of the MDL Panel’s August 2011 Transfer Order.”).

No wonder there is a current proposal, which we support, to require all MDL plaintiffs affirmatively to establish product identification within 60 days.

In any event, in Weidenhof, “[a]fter two years his case was remanded because the artificial knee he had was not one of the products in the MDL case.”  Id. at *1.  “On October 24, 2014, Plaintiffs’ case was transferred back to its originating district, the Eastern District of Pennsylvania.”  Id. at *2.

Those two law firms that the plaintiffs euphemistically “hired” – were they ready to litigate their client’s case?

Of course not.  They were just soliciting MDL plaintiffs; they had no intention of doing any actual litigation.  Thus, after another eight months of nothing passed, “[o]n June 17, 2015, Plaintiffs’ counsel filed a Petition for Leave to Withdraw as Counsel,” and “[o]n August 3, 2015, the Petition was granted.”  Id.  The transferor court in the Eastern District of Pennsylvania thus was left with the task of correcting another of plaintiffs’ ex-counsel’s screw ups – improper venue.  “On October 14, 2016, the District Court in the Eastern District of Pennsylvania entered an Order transferring Plaintiffs’ case to the Middle District of Pennsylvania,” where it belonged.  Id.

Because of Weidenhof’s sojourn in the MDL, it thus took four years even to get this MDL-solicited case into the right court and suing over the right product – but without any lawyer willing to represent plaintiff when actual litigation was required.  The MDL master complaint, which Weidenhof had incorporated, being no longer applicable, plaintiffs were directed to file an amended complaint on February 6, 2017, almost five years after this litigation began.  Id.  That “complaint” (if it can be called that), was filed on March 7, 2017, and “in its entirety, provided ‘Knee Replacement 3-09-2009 OIP Orthopedics Camp Hill, PA 17074.  Product used was Bad Product.  Caused Permanent Disability.’”

In their statement of the amount in controversy, Plaintiffs appeared to request monetary damages in an amount of no less than $200,000.00 for pain and suffering.  In the relief section of their Amended Complaint, however, Plaintiffs assert that, “Pain and suffering will always be an issue!  And may lose medical if awarded money from the Court.  Also don’t know if disability money will continue or not.”

Id.

Defendant – well beyond the point of having enough of this garbage – moved to dismiss on April 7, 2017.  Id. at *3.  The court granted the motion on March 27, 2018, after delaying for nearly a year, but even then allowed the pro se plaintiffs a chance to file a proper complaint.  Id.  Of course, they missed the deadline; so they got yet another chance.  Finally, on June 4, 2018, they filed something that, at least was properly signed.  Id.

Defendant again moved to dismiss.  After now six years of litigation, plaintiffs didn’t even bother opposing the motion.  Id. at *5 (plaintiffs “failed to timely oppose the motion, or otherwise litigate this case.  This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion”).  Because plaintiffs had “repeatedly breached,” id. at *6, just about every applicable rule, the amended complaint was finally dismissed with prejudice.

[T]his case has been before five federal judges in three judicial districts.  In this instance, however, the procedural complexities do not negate Plaintiff’s personal responsibility in failing to prosecute.  Throughout this case, Plaintiff has been shown significant lenience appropriate for a party proceeding pro se. . . .  But despite efforts by the court to show flexibility, Plaintiff only intermittently complied with court orders issued by the Eastern District and by me.

Id. at *7.  Nor was there any meritorious claim asserted.

Plaintiff alleges no facts that would support a finding that Defendants’ conduct breached a duty . . . .  Rather, Plaintiff alleges he suffered for three years, not necessarily because of a product defect, but because “no doctor would revise the product” “[d]ue to the legal litigation against Zimmer Inc.

Id. at *13 (emphasis added).  So what plaintiffs were really complaining about – after six years of litigation – was that no physician was willing to treat the plaintiff because they were deterred by “the legal litigation.”  In other words, plaintiffs ended up alleging that they were injured by the MDL itself and the surrounding solicitation, not by the defendant’s product.

Weidenhof, in and of itself, is not all that important, but it raises the question of how much legal flotsam and jetsam is floating around the federal courts because of all the meritless filings generated by blunderbuss MDL-related attorney solicitation.  Somebody has to pay to clean up these messes, and it’s certainly not been the plaintiffs’ lawyers who engage in all these indiscriminate filings.  As in Weidenhof, they jump ship at the first sign of actual work to be done.  Weidenhof was in litigation since 2012 – six years, over the wrong product − and when all was said and done, the litigation itself had harmed plaintiffs more than the original product.  What a waste of time and effort.

Together, Biomet M2a Magnum Hip and Weidenhof demonstrate that, from beginning to end, the MDL system as it currently exists (at least in prescription medical product litigation) is shot through with inefficiency, one-sided practices, waste, delay, and client abandonment, all of which prejudice defendants and make a mockery of the original premises of the MDL statute.  We believe that the current proposals for MDL reform would be beneficial, but we have to consider that the current system may well be broken beyond any repair that civil rules changes could make.  What is really needed – with a current likelihood of about zero percent – is a thoroughgoing Congressional revision of the MDL statute itself.