Picture this. Invitations go out for a Thanksgiving get-together and the host and expected guests together sort out who will bring what foods and how everything will be served. A sideboard is loaded up with the traditional holiday foods, along with a collection of everyone’s quirky favorite salad items to allow easy compilation of a guest-specific salad. Most of the guests arrive on time and eat their fill. The host fulfills her function with efficient seating, intercession in minor squabbles, and ample beverages. Like Thor’s goats, the traditional holiday foods magically replenish no matter how many guests have sampled them. Sated guests have retired to watch more football. In short, the gathering was as a Thanksgiving should be. Then, a guest appears at the door, is invited in, and directed toward to the sideboard with instructions on how to help herself, how to find a seat, and how to find beverages. The late-to-the-party guest says this arrangement is insufficient. She wants a plate prepared just for her, including both the general and guest-specific foods she contends the host should know how to pick for her, and brought to her at her preferred seat, which is on the sofa rather than the dining room table where everyone else ate. Mind you, she could have prepared her own plate and sat at the table, but she insists that a host must give her special treatment because she would not have had to prepare her own plate had she dined solo at a sit-down restaurant (excluding buffets and smorgasbords). Undoubtedly, this guest is being a jive turkey, if not an insufferable pig.
We think the plaintiff’s position in Williams v. Biomet, Inc., No. 3:18cv00211RLM-MGG, 2019 U.S. Dist. LEXIS 199802 (N.D. Ind. Nov. 15, 2019), is much like that of the boorish guest above. Her suit was transferred to the M2a hip implant MDL about six years after it was established and more than two years after generic discovery closed. (We have chimed in on a few decisions from this MDL over the years. See here.) The MDL had in place a vendor for easy access to documents produced by the defendants and a system for case-specific discovery that built on a Defendant Fact Sheet and production of specified case-specific documents. Rather than go forward with the typical case-specific depositions of the plaintiff, a treating surgeon, and one of defendant’s sales representatives, the plaintiff moved to compel the defendant to answer her written discovery in the way she wanted. She did not want to obtain generic or case-specific information from the MDL plaintiffs’ leadership or the third-party vendor selected by the parties years before. No, she wanted everything on a silver platter.
As to this issue, the court was not sympathetic to plaintiffs’ high maintenance demands. It noted that this motion to compel was brought after “[h]undreds of cases already have been remanded or transferred to other courts for trial, with all parties and courts understanding that most case-specific, and all non-case-specific discovery (also described as ‘general’ and ‘generic’ in past orders), has been completed in the MDL court.” Id. at *7. The defendant had “produced millions of documents and custodian-deponents early in the docket’s life”; these were available through the plaintiffs’ leadership, as was the complaint file on each plaintiff. Id. Medical records gathered on each plaintiff were available through the agreed vendor “on the same terms the records are available to [defendant].” Id. at *8. In responding to plaintiffs’ written discovery, defendant directed plaintiff to those sources, as it presumably had in hundreds of other cases in the MDL. “Ms. Williams contends that isn’t good enough, that [defendant] must produce the requested information and documents to her counsel rather than simply point her to a bucket full of discovery.” Id. Of course, this is an MDL and an MDL is supposed to promote efficient and non-repetitive discovery. We have described many issues we take with the general pro-plaintiff, pro-settlement slant in many modern MDLs, like here, here, and here, but we certainly agree with this foregoing principle and its application here.
Defendant’s approach did not deprive plaintiff of access to general or case-specific discovery or place an undue burden on her.
Biomet produced hundreds of thousands of documents in electronic form to Record Trak for the Plaintiffs’ Steering Committee, which serves as a stand-in for each plaintiff for purposes of receipt of discovery materials. The files are readily searchable. Ms. Williams says she shouldn’t have to conduct that search (which carries a cost as well as a risk that her search would miss documents pertinent to her case) because the rules of procedure place that burden on Biomet. If she’s right, a defendant in a mass tort MDL would have to search through the same electronic files thousands of times to narrow the pile of files down to those relating to a given plaintiff. Or Ms. Williams must conduct the search, but only once. Ms. Williams’s argument would defeat one of the main efficiencies of the MDL process.
Id. at *9. So, she basically gets what everyone else gets. Coming in late and asking for special treatment “just because” are not good reasons for deviating from the existing, established procedure. Any defendant in an MDL or state coordinated proceeding can appreciate this dynamic, and, while it might be nice to say a picky plaintiff should get nothing and like it, keeping the sideboard open for the late-arriving guests is better than having to make up a bunch of ad hoc plates of discovery for them.
Enjoy your giving of thanks and partaking of gluttony.