We’ve all seen the signs – No Shoes, No Shirt, No Service.  Their exact origin may be unknown but these signs appear to have come to popularity in the 1960s and 1970s as a response by businesses to keep “long-haired hippies” out of stores and restaurants.  Or maybe they were there before that but just got pointed out when Five Man Electrical Band’s Signs became a hit in 1971.  You’ve got to have a shirt and tie to get a seat. Long-haired freaky people need not apply.  Whatever the case, those signs are getting a 2020 update to No Shoes, No Shirt, No Mask, No Service.  Regardless of where you come out on the issue, we point it out only as a means to say it long has been acceptable for businesses to set general standards for patronage when those parameters were at least arguably geared toward public welfare, safety, and hygiene.  Really, we’ve all seen the guy walk to the airplane bathroom barefoot and immediately wondered why there isn’t a “wear your shoes” sign right next to the “buckle up” sign.  You’re not on the beach!  Similarly, long has it been acceptable for MDL courts to set up rules for the orderly conduct of discovery.  And in today’s case, the Fifth Circuit approved of this MDL sign – No PFS, No Case.

All our regular readers likely already know what a PFS is, but to be safe we’ll offer a brief explanation.  A PFS is a Plaintiff Fact Sheet (sometimes called a Plaintiff Profile Form, although those are usually shorter).  In almost every pharmaceutical or medical device MDL, at least that we can think of, this is the vehicle through which plaintiffs participate in case specific discovery.  It is a standardized set of questions that take the place of interrogatories and document requests for all cases that are transferred into an MDL.  It asks for basic background information (education, employment, family), medical information (injury, doctors’ names, prescriptions, pharmacies/hospitals), and related documents and medical release authorizations.  In an MDL, that is usually the full extent of case specific discovery unless a case is chosen as a bellwether case or is remanded for trial.  So, while the defendant is producing millions of pages of documents and electronically stored information and defending dozens of company witness depositions; plaintiffs have to fill out a PFS with information that plaintiff’s counsel should have obtained prior to filing suit.  Hardly seems like a challenging task for plaintiffs.  But yet, defendants spend an inordinate amount of time throughout the course of MDLs litigating plaintiffs’ PFS deficiencies, delinquencies – or just blatant failure to submit one at all.  Because these are discovery deficiencies, rarely do we get a published decision on them.  Which is all the more reason to draw attention to In re: Taxotere (Docetaxel) Products Liability Litigation, — F.3d —, 2020 WL 4013347 (5th Cir. Jul. 16, 2020).

The events in the MDL that give rise to this decision are the routine PFS-wrangling defendants go through:

  • a PFS is due 75 days after a case is transferred into the MDL;
  • if that deadline is not met, defendants file a “notice of deficiency” that gives plaintiffs an additional 30 days to comply;
  • if that second deadline is not met, defendants serve a “notice of non-compliance” on plaintiffs’ liaison counsel which affords plaintiff an additional 30 days to complete her PFS;
  • if the third deadline is not met, defendants can list the case on the “call docket” for the next scheduled MDL hearing.

Id.  at *1.  The Kuykendall case, the subject of the Fifth Circuit decision, reached this point.  After 135 days – or over 4 months – plaintiff had failed to submit a PFS at all.  By the time the court heard the case, plaintiff had finally managed to serve a PFS, but it was missing a lot of information – key information such as plaintiff’s prescribing physician and very basic information like her height, weight, and spouse.  Id. at *2.  Plaintiff’s counsel admitted to having “difficulty” getting information from his client, so the MDL court gave plaintiff an additional 30 days (on top of the previous extensions) to cure the deficiencies.  Id.  But that deadline passed as well with no additional information from plaintiff.  So, defendant sent another notice of deficiency and included the case on a list of cases that were subject to immediate dismissal.  That’s because the order setting the pretrial discovery PFS schedule also “explicitly warned plaintiff that their cases could be dismissed if they failed to establish good cause . . . for their continued discovery deficiencies.”  Id. at *1.  The court dismissed the case.  Id. at *2.

After the dismissal, plaintiff submitted an amended PFS which while more complete than the first was still deficient.  Plaintiff submitted a letter to the court essentially asking for yet another 30 days to comply.  The court construed the letter as a motion for reconsideration which it denied with a more fulsome order noting the “ample notice” plaintiff had received and concluding that she “made no effort to comply with the Court’s order.”  Id.  No PFS, No Case.  Plaintiff appealed.

As the dismissal was a sanction, the Fifth Circuit reviewed it for an abuse of discretion.  Id. at *3.  There was no dispute that courts have the authority to manage their dockets, including imposing the ultimate sanction of dismissal for failure to obey court orders; but that such a sanction is viewed as a “remedy of last resort.”  Id.  The real issue before the Fifth Circuit was what legal standard governs an MDL court’s involuntary dismissal as a sanction for failure to abide by the court’s orders.

Plaintiff argued that the court was required to apply a “fact-intensive six-factor test” that allowed dismissal

if (1) it is “just”; (2) it is “related to the particular ‘claim’ which was at issue in the order”; (3) the violation was willful or in bad faith; (4) “the client, rather than counsel, is responsible for the violation”; (5) the violation caused substantial prejudice to the opposing party; and (6) “a lesser sanction would not ‘substantially achieve the desired deterrent effect.’”

Id. at *4 (quoting Law Funder, L.L.C. v. Munoz, 924 F.3d 753, 758-59 (5th Cir. 2019) (per curiam)).  Defendant argued that the correct test was a two-factor test applied where dismissals were for “docket management” which requires that there be a “clear record of delay or contumacious conduct by the plaintiff,” and “lesser sanctions would not serve the best interests of justice.”  Id. (quoting Price v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986) (per curiam)).  Where the two-factor standard is applied, aggravating factors such as the extent of counsel’s responsibility versus plaintiff’s personal responsibility for the delay or the prejudice to defendant, may be “relevant to the analysis.”  Id.

In analyzing the court’s prior decisions, the Fifth Circuit concluded that in the context of an MDL, the two-factor test was the proper standard.  Id.  “[T]he complexity of managing an MDL necessitates a standard that gives district courts greater flexibility to dismiss a plaintiff for discovery violations.”  Id. at *5.  This is a wonderful acknowledgment that MDLs are different creatures.  As we said above, in an MDL the focus is heavily weighted toward the defendant and sometimes toward a select few bellwethers.  As for the rest of the hundreds or thousands of individual cases, the only way the MDL court can make sure those plaintiffs are participating is to hold them to the No PFS, No Case rule.  That rule has to have teeth if an MDL court is going to manage its cases and deal with non-complying plaintiffs.  The dismissal sanction has to be real and it has to be strictly enforced.  Id.

The Fifth Circuit found both factors satisfied in this context.  The clear record of delay is noted above.  Plaintiff had notice of her deficiencies and of the potential consequences.  She heeded neither.  “Though a delay of five months might be insignificant in some contexts, administering cases in multidistrict litigation is different from administering cases on a routine docket.”  Id. at *6.  MDL judges need firm cutoff dates to manage their docket.  Id.  Also, a lesser sanction would not have served the “best interests of justice.”  Plaintiff had already been afforded multiple extensions – in themselves more lenient sanctions.  She remained non-compliant.  Id.  Plaintiff had used up her second, third, and fourth chances.  Dismissal was the only recourse left.

No abuse of discretion.  No PFS, No Case.