Photo of Stephen McConnell

“There is naked Nature, inhumanly sincere, wasting no thought on man, nibbling at the cliffy shore where gulls wheel amid the spray.”

We are presently on vacation, in the place that inspired Thoreau’s words above. The meeting of land and water, deceptive solidity sitting hard by the greatest force of caprice on the planet, has put us in a philosophical mood. Or is that the vodka and cranberry juice?

A millennial recently (an unnecessary adverb; to our gray ears, everything we hear from millennials is recent) assured us that the phrase “Nothing is true; everything is permitted” came from the Assassin’s Creed video game. Like most things uttered by juveniles (“Try this IPA,” “I just can’t even,” “Okay Boomer”) it is risible nonsense. We distinctly remember how that dark, nihilistic formulation brought us up short while reading Nietzsche in our college course on the Greatest Hits of Western Philosophy. Back then, in 1979, the ascendant video game was Pac-Man. Talk about a cold-hearted – and hungry – assassin.

Now we think of that aphorism (and others by Nietzsche – e.g., “When you look into the abyss, the abyss looks into you”) in the context of Multidistrict Litigations, in which plaintiff lawyers pile up inventories of spurious cases and courts permit scandalously sloppy lawyering (no product identification, no testing of claims, no specific expert opinions) as claims roll down an assembly line toward settlement. We are reminded of an in-house friend who lived close to the Hatfield meat processing plant. She told us how trucks carried pigs up the road to the plant, and trucks came back down the road filled with packages of hot dogs and scrapple. This was the circle of life, though the folks at Disney have not yet written a song about it.

Even when an MDL judge requires plaintiff lawyers to invest a little work in their cases and do the things required by the rules of civil procedure, what we usually get is thin gruel, just enough sustenance to keep the cases on life support as the gurney wheels them into the settlement grid. But what if the meat-grinder jams, the hogs run wild through the streets, and cases get remanded for actual trial work-ups? At that point, the occupants of the other side of the v. emit an audible “oops” as they set about trying to fix their cases. With eyes afresh, these enterprising lawyers reacquaint themselves with their clients and start stuffing the file with goodies.

Here is one way we have seen this comedy of errors play out: plaintiffs’ standard modus operandi seems to be to file “supplemental” expert reports that cover topics that should have been, but weren’t, covered in the expert reports filed in the MDL. Do plaintiff lawyers get away with that maneuver, even well past deadlines for expert reports? Sometimes yes, and sometimes no. We prefer the latter.

An example of the latter is Robinson v. Ethicon Inc., 2021 U.S. Dist. LEXIS 167615 (S.D. Texas Sept. 3, 2021). This decision didn’t let the plaintiff get away with the late filing of brand new expert opinions. The court struck the “supplements” as improper under the MDL orders. The expert reports contained material that could have been filed in the MDL if the plaintiff lawyers had devoted a moment to considering what state law would apply (Texas).

Robinson was part of the pelvic mesh litigation. Over 100,000 complaints had been filed against this particular defendant The MDL judge organized the MDL into “waves,” each with its own set of deadlines. As we write this we hear the rhythmic crash of waves, reminding us of their relentless and chaotic power. But the analogy breaks down. You can’t surf your way out of an MDL.

The Robinson case had been filed in 2013. Then the case sat for six years. Plaintiff expert reports were due in May 2019, defense reports were due in June 2019, and plaintiff rebuttal reports were due in July 2019. The Robinson case was remanded to the Southern District of Texas in October 2020. The MDL judge’s transfer order urged the receiving courts not to reopen discovery.

The S.D. Texas remand court geared the case up for trial. As part of that gearing up, the court set deadlines for supplemental expert reports pursuant to Fed. R. Civ. P. 26(e).

The plaintiff seized this opportunity to file two “supplemental” expert reports that addressed safer alternative products. The plaintiff did so after realizing, upon reading the defendant’s summary judgment motion, that Texas law did not consider safer alternative procedures to satisfy that state’s statutory requirement of a safer alternative design.

Understandably, the defendant was irked by the plaintiff’s backfilling effort, and moved to strike the supplemental expert reports because they were not truly supplemental; rather, they offered wholly new opinions based on information that was available to the experts at the time of their original reports. The plaintiff responded that (a) the MDL expert reports were merely generic and she ought to be able to supplement to address the specific requirements of Texas law, (b) one of the experts referenced a new article unavailable at the time of the original report, and (c) in any event, the supplement was “substantially justified and harmless.”

The remand court did not buy what the plaintiff lawyers were selling. The plain text of Rule 26(e) is the key. Rule 26(e) requires parties to supplement disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”

Supplemental disclosures are not an extension of the expert deadline. The defendant correctly argued that the supplemental reports in Robinson were not the types of supplements contemplated by Rule 26(e) and “instead are an attempt to avert summary judgment by filing new and improved reports”. Here, the plaintiff should have expected Texas law, with its strict alternative design requirements, would apply. Further, the plaintiff failed to establish that any information in the “new” study was actually not available at the original MDL expert deadline, since it was merely string-cited. That “new” study came out in 2019. As the Robinson court reasoned, if the 2019 study “indeed provided new scientific information that had an impact” on the experts’ opinions, “then waiting two years to provide this information to the opposing party is more akin to gamesmanship than timely supplementation.”

Nor was there anything “new” about the Texas statute addressing design defect and alternative design. Nor was the delay justified or harmless. Rather, the supplement was used in an attempt to defeat a pending summary judgment motion – a “roadmap” to the weaknesses of plaintiff’s case. The Robinson court emphasized that “[t]he purpose of the MDL is to increase efficiency in these cases, and [the plaintiff’s] strategy of holding these opinions until discovery was complete and the case was remanded to this court is contrary to that purpose.”

So it turns out that some things are true. Not everything is permitted. For a millisecond, the Robinson court managed to restore our reverence for rules and – dare we say it? – prompt a hope that MDLs really can serve efficiency and fairness.

But perhaps these are mere idle thoughts. Like lobster bibs and lighthouse souvenir key rings, they are fit only for vacation.