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You’ve heard the saying – you can run, but you can’t hide.  Well, in Multidistrict Litigation, we could have a saying – you can hide, but only until remand.  It’s no secret that in most mass torts, only a handful of cases are in the spotlight.  The bellwethers.  The intention, usually by all parties and the court, is that if you get through the bellwethers, the next phase will be some sort of compromised resolution.  But, that’s not an absolute certainty.  There can be very legitimate reasons for defendants to prefer remands to settlement.  Often dictated by the number of cases and the rulings achieved during the MDL.  And once remand happens, the spotlight shifts.  The beacon that used to shine only on the defendant and the bellwether plaintiffs cast a very large shadow.  In that shadow hide the remaining plaintiffs.  Doing the bare minimum to survive.  Not drawing any attention to themselves.  Hoping for a return on time spent idle.  But when one of the shadow-dwellers gets remanded, it’s a whole new game.  And, if they don’t adjust to the light quickly, they can face the fate of plaintiff in Atkinson v. Ethicon, Inc., 2019 U.S.  Dist. LEXIS 115224 (W.D. Pa. Jul. 11, 2019).

The remand court in Atkinson turned on the floodlight and plaintiff’s counsel was left blinded.  The case involves injuries allegedly sustained from use of defendant’s transvaginal tape.  The lawsuit was filed in 2013 and was in the MDL for six years.  During that time, pretrial proceedings, including fact and expert discovery and the filing of dispositive motions, took place.  Id. at *1-2.  At remand, it was undisputed that all discovery had been closed in the case for at least seven months and that plaintiff had not served any expert reports.  Id. at *2 & n.1.  The remand court ordered the parties to re-file any pending motions and to do so in accordance with all local rules and the court’s practices and procedures.  Defendant re-filed its motion for summary judgment.  Plaintiff moved for an extension of time to respond because she wanted to prepare an expert report.  No hiding this time, motion denied.  Id. at *3-4.

Apparently, unaccustomed to the limelight, plaintiff’s counsel disregarded that order and submitted a “newly prepared expert report” with her summary judgment response and argued only that the expert report nullifies the summary judgment motion.  Id. at *4.  Defendant moved to strike the expert report and plaintiff, still fumbling in the brightness, didn’t respond.  Id. at *5.

The court swiftly granted the motion to strike because plaintiff “provided no valid basis to justify [her] conduct or explain why such a delay would be harmless.”  Id. at *7.  The court acknowledged that striking the expert report would ultimately require dismissal of the case, but “severe consequences” alone are not enough to overlook lassitude.  Perhaps worse than offering no excuse, plaintiff’s counsel offered a feeble excuse.  Counsel was not receiving docket notifications while the case was in the MDL.  Did counsel think nothing was going on in the case for six years?  Apparently the MDL shadow is darker than we even imagined.  Defendant rightly points out that it was incumbent on plaintiff’s counsel to check the docket and investigate why he wasn’t receiving any notifications.  Defendant also notified plaintiff’s counsel of the deadlines, making the I-didn’t-know excuse even more flimsy.  Id. at *8-9.  Indeed, the court called the excuse “weak” and “tantamount to willful blindness.”  Id. at *10.  Further,

Plaintiff[] caused prejudice to Defendant through inexcusably ignoring the deadlines and docket filings in this case for an extended period, warranting exclusion of [plaintiff’s] late-filed expert report as a sanction. . . . Plaintiffs have shown a lack of diligence, including through their failure to abide by this Court’s rules and the transferor court’s case management deadlines. Rewarding that lack of diligence would create perverse incentives for litigants and would undermine the Court’s ability to manage its cases efficiently.

Id. at *10-11.

Without an expert, plaintiff cannot prove causation warranting dismissal of all claims.  But, as the plaintiff did not substantively address any of defendant’s arguments in its response to the motion for summary judgment, the court was also justified in granting the motion because plaintiff failed to submit any record evidence to support any of her claims.  Id. at *13.

This is an extreme example, but it turns the spotlight on one of the biggest problems with MDLs – the shadow plaintiffs and their lack of engagement in the litigation process that leads to defendants having to spend time and money to get rid of them after they hang around for six years waiting for reward without putting in the work.