Photo of Rachel B. Weil

We write as we prepare to head to the airport for a long weekend in Whitefish, Montana, a bit of paradise in in the Flathead River Valley of northwest Montana, just outside of Glacier National Park.   As we have mentioned in other posts, Whitefish is the home of beloved friends of many decades, and we find that occasional visits serve as no less than transfusions for the soul. We love to stand on the banks of the Flathead at sunset, and we always are reminded of Norman MacLean’s “A River Runs Through It.” When we teach writing seminars for associates, we cite our favorite quote from that book as an example of words creating an indelible image: “Eventually, all things merge into one, and a river runs through it. The river was cut by the world’s great flood and runs over rocks from the basement of time. On some of those rocks are timeless raindrops. Under the rocks are the words, and some of the words are theirs.”   Anyway, we are headed west, after an absence of too long, but better late than never.

And the same is true for today’s decision out of the Abilify MDL.  This MDL has been around for a long time, and we have posted about it before.   (You can see a couple of our previous posts here and here.) Today’s decision, In re: Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16md2734, Document 1170 (Sept. 24, 2019), which you can see here, nails the coffin shut on many plaintiffs’ claims.  As the court explains, the parties reached a global settlement in February of this year. To facilitate the settlement, the court issued an order requiring each plaintiff who wanted to participate to submit a claim form, including documentation of their use of the defendant’s product, along with a signed release. Plaintiffs were warned that failure to comply within the applicable deadlines could result in dismissal with prejudice. A number of plaintiffs ignored the deadline. In true MDL fashion, the court gave them another chance, ordering them, in early September, to submit the required documents and to show cause why their claims should not be dismissed. Many ignored this order, too.

The court invoked Fed. R. Civ. P. 37(b)(2), which provides for sanctions, including dismissal, for failure to comply with court orders.   Before dismissing cases, as the court explained, Rule 37 requires a court to find that a party has engaged in “a clear pattern of delay or willful contempt (contumacious conduct) . . . and that lesser sanctions would not suffice.” September 24 Order, at 3 (internal punctuation and citations omitted). The court had no trouble finding that both prongs of the test were satisfied.

First, the court explained, many plaintiffs had disregarded the court’s orders entirely. Others “responded to the show cause order but conceded that they are able to provide any evidence that they used [the] brand name [product].” Id. at 4 (emphasis in original).   The court commented, “. . . [A]t this advanced stage of this litigation, which has been pending for almost three years, it is not too much to require plaintiffs to provide proof of use in support of their claim that [the defendant’s product] caused them injury, particularly where they are seeking to be compensated for taking the drug.” Id. The plaintiffs were notified multiple times about the possibility of impending dismissal, and they still did not comply. As such, the court held that dismissal with prejudice was “the only acceptable alternative” for the 149 non-compliant plaintiffs. Duh.

Because we spend a great deal of our professional lives in the MDL space, we feel compelled to state the obvious.  Of course a plaintiff queued up for a handout should be required to prove that he or she actually used the product at issue. But we are struck by the absurdity of the fact that no one required this proof at any earlier stage.  The plaintiffs’ lawyers apparently did not condition their representation on evidence that the plaintiffs had ever used the product.  And the court allowed the claims to proceed for three years before it demanded this proof.  Forgive us, but this is the most important element of all that is “broken” about the MDL system.  This case is a start, but we are huge fans of Lone Pine orders and believe that no plaintiff should be allowed to usurp everyone’s resources without the barest evidence of a colorable claim.   Sounds obvious, right?

Meanwhile, PHL beckons.  We will talk to you soon, magically restored and, just perhaps, less cranky about issues like these.