On many occasions, we’ve remarked that in modern prescription medical product liability litigation MDLs, the main objective of both plaintiffs and their counsel is to file as many lawsuits as possible, and then to do the bare minimum possible to avoid dismissal. The idea is to run up the numbers, make the defendants spend huge sums in discovery (electronic or otherwise), prevent any real scrutiny of their own claims, let lead counsel litigate everything else to death, and wait for the economics of it all to force the defendants to offer huge sums escape the MDL morass.
That’s the business model.
But when it doesn’t work – when an MDL is remanded rather than settled − things can get ugly. Most plaintiffs’ counsel aren’t well equipped to litigate a bunch of unvetted post-remand cases. That kind of real work is not what they signed up for. While the plural of anecdote is not data, a couple of recent cases that came across our desks make the point quite nicely.
In Rolandson v. Ethicon, Inc., 2020 WL 2086279 (Mag. D. Minn. April 30, 2020), a pugnacious Philly plaintiffs’ lawyer ended up cross-ways with a “Minnesota Nice” judge over shenanigans mostly involving post-remand experts. The MDL remand (yes, it’s a mesh case) came after plaintiff had timely designated the MDL maximum five expert witnesses. Id. at *2. At the first post-remand conference, “Plaintiff’s counsel . . . acknowledged that both general and case specific reports had been served” and “[n]either party, certainly not Plaintiff’s counsel, indicated that new experts would be disclosed.” Id. The court allowed all additional discovery that both parties did request, which included a plaintiff-side medical examination of the plaintiff. Id.
But once counsel (unlike the judge in Rolandson, who was peeved enough to call the offenders out, we’re not naming any names) took a closer look at the case, funny business ensued. Counsel slipped a reference to “Ps reports” – plural – into otherwise innocuous emails. Id. But the only additional report that plaintiff had been requested, or the court allowed, was for the medical exam. That didn’t escape notice, and. . . .
[Defense counsel] sought clarification as to whether [plaintiff] intended to add a new expert or serve several supplements to the expert reports already served in the case. [Plaintiff’s counsel] “I will serve whatever reports I deem necessary.”
That’s exactly what happened next. Ignoring both the court’s order and her own prior representations, counsel proceeded to “serve . . . an entirely new general expert report” that “was signed, [but] not dated.” Id. at *3. That report came with the excuse that it “was inadvertently not produced during the MDL workup of this case.” Id. The new expert was not a substitution – counsel unilaterally introduced a sixth expert. Id. As mentioned previously, the MDL limit was five.
That’s not all. After the post-remand conference, the plaintiff (without defendant being informed) visited a former treating physician she had not seen in some four years. Defendant only found this out from subsequently produced medical records. Id. The notes of that visit mentioned that plaintiff had also recently seen another, also unidentified, “specialist.” Defendant demanded the records of this undisclosed doctor, and plaintiff’s counsel denied everything. Id. (plaintiff “has not seen any treaters who have not been disclosed”) (quoting counsel’s letter).
That representation was then retracted. “On the day” of the former treater’s deposition, counsel admitted that plaintiff had not only been sent to see the “specialist” mentioned in the medical records, but had also had additional mesh-related surgery, performed by the physician who had only been described as only performing the aforementioned “examination.” Id.
Additional expert reports followed, after counsel evaded (we’ll be charitable) defense questions about the timing of both disclosures and examinations. Id. at *4. These reports revealed that the surgery had already occurred before the initial post-remand conference, where it was never mentioned. Plaintiff insisted on calling all of these experts, notwithstanding the MDL limits. Id. Even more seriously:
[The surgeon] states he saw a small erosion of mesh, which he removed during the examination. He opines that the removed mesh “may have been [defendant’s] mesh”. . . . Rather than follow the detailed and specific procedure set forth in the MDL court’s preservation protocol, [the surgeon] did not retain the mesh he excised.
Id. So now we have not only undisclosed surgery, but spoliation as well.
Defendant moved for sanctions. Plaintiff’s counsel blew off the hearing, not showing up at all. Id. at *5. Claiming (but not under oath) “an inadvertent calendaring mistake,” counsel prevailed on the court to reschedule the sanctions hearing. Id. The “information” counsel provided at the rescheduled hearing demonstrates the truth of our complaints about MDLs – nobody had paid attention to the case while (and for a while after) it sat around for years in the MDL. First, as to the initial undisclosed expert:
As an officer of the Court, [counsel] stated, as to [the first undisclosed expert], she had not been involved with the discovery workup in the case and realized only during her preparation for [the treater’s] deposition that another expert . . . had been designated. . . . [Counsel] realized she was without a general expert report on [a relevant product], which is the larger device [plaintiff] had implanted, and so served [the undisclosed expert’s] report on [that product]. [Counsel] . . . stated she was unaware of the MDL court’s order, applicable to all Wave 8 cases, limiting each side to five experts. She offered no explanation why, upon learning of this apparent inadvertence, she did not contact Defendants’ counsel . . . or otherwise deal with the matter forthrightly.
Id. (record citations omitted). Sounds like a typical hasty post-remand assignment.
Next, as to the plaintiff’s undisclosed surgery, conducted by the a physician previously purported to be only an examiner:
The Court also heard new details regarding [the second undisclosed expert’s] two expert reports. When [counsel] spoke to [plaintiff] after becoming personally involved in the case, [plaintiff] informed [counsel] that she was in pain. [Counsel], allegedly at her own expense, sent [plaintiff] to [the second expert], a frequent plaintiff’s expert in this mesh litigation. . . . When [that expert] purportedly identified a piece of exposed mesh, [counsel] first sent [plaintiff] to her treating physician, . . . and then to [the undisclosed surgeon]. [Counsel] . . . served [the undisclosed expert’s] reports because she has “never dealt with this situation before” of an expert excising and discarding mesh during an examination and “felt that we might need to replace [the surgeon] altogether.” She did not explain why, if that was her reason, she served [the expert’s] general expert report . . . along with his case specific report, as [the surgeon] had not provided a general expert report in this case. Nor did she square this purported rationale with her correspondence to [defense counsel], which both affirmed her intent “to use both [undisclosed witnesses] at trial,” and took the position that this Court’s order set “no limits on expert reports or designations,” a position she took again in her brief to this Court.
Id. (record citations omitted). So since new plaintiff’s counsel hadn’t been involved in the MDL, her position was that the MDL rules didn’t apply to her – got it.
Finally, as to the failures to disclose themselves:
[Counsel] reiterated that she only learned of the [surgeon’s] excision from her client the morning of [the treater’s] deposition. She further asserted she did not ask [the surgeon] to remove any mesh and was shocked when she learned he had done so. But, again, [counsel] offered no explanation why she did not inform [defense counsel] of [the surgeon’s] failure to preserve the mesh when they talked before the deposition. Nor did she say why she did not mention this important detail to defense counsel until she served [the first undisclosed expert] report, two weeks after she learned of the excision and over a week after [defense counsel] directly asked about preservation.
Id. at *6 (record citations omitted). Oh, what tangled webs we weave.
Our apologies if readers find the quotes a bit hard to follow. As mentioned already, the opinion itself names the names.
Sanctions were granted. While plaintiff’s lack of any expert at all as to one of the products may have been “a serious, though correctable, mistake,” id., the rest of counsel’s conduct “was plainly advertent − contravening court orders and warranting all the relief Defendants request in their motion.” Id. We do question, however, whether this defect is indeed “correctable.” We blogged not too long ago about the same thing happening in another post-remand mesh case – plaintiff had no expert about one of two mesh products at issue − and the resultant dismissal of that case on causation grounds.
As to the spoliated mesh that the surgeon masquerading as an examiner had removed, all mention of it was stricken. “Defendants are clearly prejudiced by not being able to examine the excised material themselves. Therefore, the Court orders that all references by [the surgeon] to the excised mesh will be stricken from his report and no reference to his purported observations will be allowed.” Id. Further, the court was “displeased by the sequence of events”:
[Counsel] had an affirmative obligation to inform [the surgeon] of the [MDL] preservation protocol. . . . If it is self-evident that [the surgeon] had an obligation to help [plaintiff] if he could, then [counsel], who knew of the potential erosion when she sent her client to several physicians, had an obligation to alert each doctor to the need to preserve any excised material. . . . [M]ost importantly, [counsel] has not offered any justification for why she waited to be candid with the Defendants and this Court about [the surgeon’s] violation of the MDL Court’s preservation order. Whatever error [the surgeon] made, Counsel’s failure to deal with the issue in a timely and forthright manner only exacerbated the problem.
Id. at *7.
There was also the matter of the two undisclosed and over-the-limit experts that plaintiff attempted to force into the case. Both had only been disclosed “well after the time to do so had passed.” Id. The court found “no substantial justification” for the delay.
Not only was this Court’s Order clear on its face, [counsel] was part of the preceding status conference and knew the context of the Order. To put it mildly, it is disingenuous to say the parties communicated a broad need for additional general expert disclosures. . . . When asked if Plaintiff had any other discovery needs, [counsel] replied, “I don’t anticipate anything beyond that, no.”
Id. “This argument is not only wrong, it is knowingly wrong.” Id. (citing Fed. R. Civ. P. 11). The belated disclosures also caused “harm.” Id. at *8. “Defendants face prejudice from the untimely disclosures” because “[b]y disclosing new experts after all expert disclosures were due, [counsel] denied Defendants the opportunity they would have otherwise had to make strategic decisions about which experts to disclose in response to Plaintiff’s experts.” Id.
Further, without intervention by this Court, at least one clear prejudice would remain: [plaintiff] would have seven experts but Defendants would have only have five.
Id. Plaintiff’s belated offer to “substitute” the new experts for some of those properly disclosed was “a gentler remedy than Rule 37 contemplates.” Id.
Further, to allow substitution flew in the face of the ostensible reason for having an MDL in the first place.
When a case returns from an MDL, the home district court must be able to rely upon the work that got the case to the home stretch. As the MDL court that oversaw this case explained, this process only succeeds when counsel collaborate with the Court to fashion workable pretrial procedures − and then adhere to them.
Id. Because “the late disclosures were neither justified nor harmless,” sanctions were appropriate. Id. at *9.
All the belated, undisclosed expert reports were stricken. Since the surgeon had been timely disclosed (albeit it only as conducting an “examination”), he could still testify as to that. Id. Thus, the first undisclosed witness was unnecessary – indeed counsel “did not originally intend to serve an expert report from” him at all. Id. Striking that expert was easy. As to the second undisclosed expert, concerning a product counsel had apparently not realized had been implanted until well after the disclosure deadline, counsel’s questionable conduct warranted the same sanction:
Had [counsel] promptly raised the issue in a candid and above-board fashion after learning of her firm’s error, this Court could have considered whether good cause existed to amend the scheduling order in a tailored manner. Or, had she conferred candidly with opposing counsel, she may have found willingness to reach a resolution without any motion at all.
But [counsel] did not promptly bring the issue to either Defendants’ or this Court’s attention. Instead, she unilaterally disclosed a new expert over a year after the deadline and in excess of Plaintiff’s allotted experts. . . . Any time Defendants’ counsel asked about the timing and number of expert disclosures, [counsel] dissembled, obfuscated or responded combatively. Only when she appeared before this Court in person did [counsel] abandon these tactics, instead asking the Court to understand that “the dog ate her homework.”
Id. Minnesota is not Philadelphia.
Counsel also was ordered to pay, personally, over $14,000 in costs and fees. Id. at *10. Counsel had “a choice: deal with the issue in a forthright and candid manner . . ., or dissemble, hide the facts, and, ultimately, attempt to blame the Court for her own mistakes.” Id. Both as to the lack of a product-specific expert report, and again, as to the spoliated explant evidence, counsel “chose to avoid being fully candid until it was clear there was no other way out.” Id. at *10.
That’s what can happen when counsel has to deal with “inventory” cases left twisting in the wind after remand. Post-remand was the first time that the plaintiff’s lawyer had to look at whether there was enough evidence to go to trial, and that is when things came off the rails.
Then there’s Thompson v. C.R. Bard, Inc., 2020 WL 3052227 (S.D. Ga. June 8, 2020), yet another mesh case. Counsel in that case tried to continue, after remand, with the same MDL strategy we have complained about – doing nothing at all. Thus:
- “Plaintiff’s counsel had failed to comply with the orders of the [MDL court] when this case was pending in that court pursuant to a multidistrict litigation.”
- “[T]hough this lawsuit had been pending for over a year at that point, Plaintiff had never served it with a copy of the Complaint.”
- “Plaintiff individually failed to prosecute her claims by ignoring her discovery obligations and apparently failing to communicate with her own attorney.”
- “Defendant moved to dismiss this case due to Plaintiff’s failure to serve Defendant and failure to prosecute.”
- “Plaintiff filed no response to the Motion to Dismiss.”
- “[T]he Court ordered Plaintiff’s counsel to show cause within fourteen days why the case should not be dismissed. Plaintiff’s counsel entirely failed to respond to that Order.”
- The court set a hearing.
- “Plaintiff’s counsel failed to respond . . . until . . . nine minutes before the start of the show cause hearing. At that time, she attempted to e-mail her response to the original show cause Order (issued months prior) to the Courtroom Deputy Clerk.”
- At the hearing “Plaintiff’s counsel admitted that she received and viewed e-filing notices of the Court’s show cause Orders” but had “no reason or excuse to offer this Court for her lack of response for over six months.”
- “[N]either [counsel] nor anyone from her firm has had any contact with Plaintiff since October of 2016.”
Thompson, 2020 WL 3052227, at *1-2 (record citations and quotation marks omitted). Unfortunately, for both plaintiff and her counsel, the MDL strategy of sitting around, doing nothing, and waiting for the defendant to settle didn’t work. That strategy became impossible in Thompson after remand, when jurisprudence finally happened.
Thompson was thus dismissed, both for failure to ever serve a complaint and for failure to prosecute generally. Lack of service was addressed first:
[I]t appears Plaintiff has still failed to serve Defendant with this action and has entirely failed to respond to Defendant’s Motion to Dismiss. Thus, Plaintiff’s claims are subject to dismissal without prejudice for failure to effectuate service of process.
2020 WL 3052227, at *2. One may wonder how a case could be remanded with a pending motion to dismiss for failure even to serve a complaint, but such is today’s MDL world.
Dismissal with prejudice for failure to prosecute followed. The court had no trouble “conclud[ing that] a clear record of delay or willful contempt exists.” Id. at *3 (citation and quotation marks omitted).
Plaintiff (individually and through counsel) has repeatedly disregarded her obligations to prosecute this case before this court as well as the MDL court. Plaintiff did not timely serve the Complaint, she did not participate in discovery, she failed to respond to the Motion to Dismiss, she ignored the Court’s first show cause Order, she did not respond to the Court’s communications following that Order, and she failed to respond to the second show cause Order until the morning of the hearing. At the hearing and in her post-hearing submission she did not provide good cause for these numerous failures. Moreover, for nearly four years Plaintiff has entirely failed to respond to her attorney’s numerous attempts to contact her about this case.
Id. So the plaintiff got dismissed – and her counsel got sanctioned.
Sanctions required a finding of “bad faith,” id. at *4, which Thompson found readily apparent from the record:
[A]t every stage of this case, Plaintiff’s counsel has recklessly failed to perform the most basic obligations of a trial attorney and in doing so has obstructed the litigation of this case. Counsel failed to serve this case, failed to comply with the orders of the MDL court, failed to respond to the Motion to Dismiss, and entirely disregarded this Court’s show cause Order. Indeed, this Court had to issue two show cause orders and send several communications to Plaintiff’s counsel to draw her attention to this case. Even then, counsel did not respond until the morning of the show cause hearing. Plaintiff’s counsel’s statements at that hearing as well as in her post-hearing submission do not provide any justification whatsoever for her repeated failures in this case. Counsel has at least more recently demonstrated candor by owning up to her dereliction of duties. Nonetheless, viewed objectively, Plaintiff’s counsel’s pattern of disregard in this case is tantamount to bad faith.
Id. at *5 (citations omitted). As in Rolandson, attorney’s fees – albeit only $5500 – were awarded against counsel in Thompson.
Both Rolandson and Thompson are evidence that, not only is the MDL system broken, but it is broken in a way that encourages abusive conduct by the other side of the “v.” even after remand. Cases sit indefinitely in MDLs with no investigation or other movement. Why spend money litigating, when you can hide in the weeds until a settlement occurs? But when the pot of gold at the end of the rainbow doesn’t happen, that leaves plaintiffs’ counsel in a poor position actually to litigate the multitude of cases they filed. How counsel respond varies. In Ronaldson it was with belligerence and concealment. In Thompson it was to continue hiding in the weeds when the weeds were no longer there. But the basic dysfunction, unprepared or indifferent counsel confronted with having to litigate unfamiliar cases, is the same. Unless and until effective vetting of plaintiffs is required in MDLs, these situations will recur.