By now our beef with Multidistrict Litigations has become monotonous: plaintiff lawyers assemble enormous inventories of weak cases, then contort the bellwether pool to ensure that only their best cases go to trial. We remember an oral argument in front of an MDL judge in which we employed statistics to show that a representative MDL case would be one with sketchy liability and minimal injury. Well, the MDL judge asked, what’s the sense of trying a case like that? He did not want to try a case that the plaintiff couldn’t win. We’re glad you weren’t there to watch us gape and stammer at this less-than-Solomonic decision. Plaintiff lawyer gamesmanship is bad enough, but it is much worse when the court plays along.
But in today’s case, In re Taxotere Docetaxel Products Liability Litigation, 2021 U.S. Dist. LEXIS 6370 (E.D. Louisiana Jan. 13, 2021), the MDL court did not play along with plaintiff gamesmanship. To the contrary, the court made the plaintiff pay a price.
The first Taxotere bellwether trial took place last September and the second is slated for this May. The court had selected some cases for preliminary discovery as possible second bellwether trials. One of those cases was plaintiff Crayton’s. The defendant deposed plaintiff Crayton and three additional fact witnesses. We surmise that these depositions went well for the defendant. Why? Read on.
The Taxotere MDL court later selected the Crayton case for another phase of discovery as an alternate plaintiff for the second bellwether trial. Shortly after this selection, the Plaintiff Steering Committee (PSC) filed a motion to strike the Crayton case from the bellwether pool. We are not told why. Surely the PSC said something more than, “Judge, please don’t make us try this lame case.” Whatever the PSC argued, it didn’t work. The court denied the PSC’s motion to strike.
Last November, the court met with plaintiff Crayton, her lawyers, and the defense lawyers. The court determined that plaintiff Crayton was lucid, but that she probably lacked the stamina to endure a 10 day trial. So, in the end, the plaintiff lawyers got their way and prevented the Crayton case from going to trial. We do not know how to draw the ‘waddya-gonna-do’ shrug emoticon, so just imagine it right here.
But then the MDL court did something that warrants applause. The court ordered that because “discovery has been completed, the Court will entertain dispositive motions in her case.” Dispositive motions? In an MDL? This E.D. La. Judge might as well have said ‘Le bon temps rouler.’
Whereupon the defendant filed a summary judgment motion based on plaintiff Crayton’s failure to produce evidence of causation. Unlike with other bellwether plaintiffs, the PSC’s expert dermatologist had not diagnosed Crayton with the injury at issue, Permanent Chemotherapy Induced Alopecia (PCIA). Under Louisiana law, as with the law pretty much everywhere, the absence of expert testimony supporting medical causation is fatal to a product liability claim.
What was plaintiff Crayton’s response? She contended that when the court removed her case from the bellwether trial pool, she had no obligation to produce an expert report. Rather, she at that time became “merely one of 12,000 plaintiffs” in the MDL. The quiet part, which her lawyers did not say out loud, was that plaintiff Crayton would now be one of the thousands of parked cases awaiting a settlement payout based on a grid, or based on an affidavit, but certainly not based on justice or reality. Her lawyers wanted to stay in the game.
The Taxotere MDL court declared game over for plaintiff Crayton. The court had not removed the Crayton case from the bellwether trial pool until after discovery had been completed. The court had furnished fair warning that dispositive motions were now fair game. Plaintiff Crayton argued that she did “not want to be singled out for special treatment and forced to produce an expert report at this perilous time of Covid-19 outbreak.” But the deadline for Crayton to submit an expert report was in October 2019 – several months before the outbreak invaded our shores. In any event, being singled out is irrelevant. Part of the MDL machinery involves singling out bellwether cases, and selected plaintiffs bear the obligation of moving their cases forward. It turns out there is no statutory or constitutional right to park one’s case in an MDL.
Plaintiff Crayton came up with some other arguments in an effort to stave off dismissal – such as that she was too frail to submit to a biopsy that would permit an expert to opine on PCIA causation, or that the temporal connection between the Taxotere and hair loss could prove causation – but the MDL court was unconvinced.
As we have already conceded, in one sense, the Taxotere PSC got their way: the Crayton case did not go to trial and, therefore, did not result in a defense verdict that would have exerted a downward force on settlement numbers. But the dismissal had to be almost as helpful to the overall defense effort. At least the plaintiffs did not get the freebie they have come to expect in MDLs. The court imposed a price for the bellwether manipulation.