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Here’s something we’ve never seen before in a mass tort MDL.  In In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2021 WL 3375941 (E.D. Pa. Aug. 3, 2021), two former MDL plaintiffs who had suffered summary judgment against their claims were allowed to rejoin the MDL – to assert legal malpractice claims against their former attorney – who also happened to be a member of the group of attorneys controlling litigation decisions on the plaintiff’s side of the Zoster.

Previously, these plaintiffs had been bounced because they filed their action well after the expiration of Pennsylvania’s two-year personal injury statute of limitations.  “[E]specially telling” were statements that the recipient plaintiff made to his employer shortly after his vaccination:  that he was suffering a “[r]ash from shingles vaccine” and that he had “developed a dry cough and some fever which persists.”  Juday v. Merck & Co., 730 F. Appx. 107, 111 (3d Cir. 2018) (affirming summary judgment).  Eight months after losing that appeal, plaintiffs, represented by “new counsel,” sought to vacate the summary judgment entered against them.  In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 329 F.R.D. 151, 153 (E.D. Pa. 2018), aff’d, 799 F. Appx. 137 (3d Cir. 2020).  Plaintiffs now claimed that “that their original counsel did not seek to take any depositions or propound any discovery before [defendant] moved for summary judgment.”  Id. at 154.  No dice:

We will not allow plaintiffs to be relieved from the judgment entered against them because of buyers’ remorse after their prior counsel made a deliberate, maybe improvident, decision in a lawsuit.  Under the present circumstances, mere dissatisfaction with one’s counsel’s decisions and unhappiness about an adverse result is not a basis for undermining the finality of judgments.

Id. at 155 (citation omitted).

So plaintiffs brought a legal malpractice action.  But they did more than that – they sought to intervene in the MDL that had already expelled them once.  The MDL judge allowed it, since the elements of legal malpractice require the plaintiff to prove a “case within a case,” that the original action would have succeeded but for the defendant attorney’s malpractice.  2021 WL 3375941, at *1.  The evidence required to do that resided, if at all, in the MDL:

[I]t is clear that [plaintiffs’] malpractice action involves common questions of law and fact with this multidistrict litigation.  Both deal with issues related to the design and effect of [the product], the warnings provided, and whether there is a causal connection between [the product] and various illnesses allegedly sustained by the vaccine recipients.

Id. at *2.  The court therefore modified the in-place protective order so that these malpractice plaintiffs could “obtain essential discovery in their pending lawsuit.”  Id. (requiring plaintiffs to agree in writing to be “bound by all the terms and conditions of the Protective Order”).

Even more recently the Zoster MDL judge expanded these plaintiffs’ access to include expert, as well factual, discovery.  In re Zostavax Zoster Vaccine Live Products Liability Litigation, 2021 U.S. Dist. Lexis 192687, at *3 (E.D. Pa. Oct. 6, 2021) (since “none of the parties in the MDL objects to providing [plaintiffs access to expert discovery, the court sees no compelling reason why a non-party should block access when, as here, the discovery is not in the possession of that non-party”).

That reference to a “non-party” underscores the most interesting fact of this litigation, from a defense-oriented point of view.  The attorney these plaintiffs are suing is simultaneously a member of the MDL’s “Plaintiffs Executive Committee.”  Id. at *3 & n.3.

Although it may not matter in the context of the Zoster MDL, since these plaintiffs’ situation could well be idiosyncratic, the presence of legal malpractice plaintiffs in an MDL, who are suing the same attorneys running that side of the MDL, raises interesting ethical issues that defendants should keep in mind.  Blowing the statute of limitations is a classic basis for both summary judgment and an ensuing legal malpractice claim.  There is a distinct possibility that our opponents could face a conflict of interest when the same evidence that might help the MDL plaintiffs’ cases generally might also simultaneously strengthen legal malpractice cases against the same attorney(s) making “executive” decisions for the plaintiffs as a whole.

And what if it’s not just one case, but instead a significant number of MDL-associated malpractice actions?  We got within shouting distance of something similar years ago in the Bone Screw litigation where certain attorneys tried to “park” over a thousand plaintiffs’ cases in a state court in Tennessee.  Counsel stipulated to a “universal date of discovery” that was more than one year before those actions were filed, which was problematic, given that Tennessee has an unusually short one-year statute of limitations.  Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805, 806 (Tenn. 2000).  The ensuing mass statute-of-limitations dismissal happened so late in the litigation that malpractice lawyers were never involved (unlike Zoster), but potential malpractice liability on that kind of scale could definitely affect how an opposing attorney chooses to litigate a mass tort.

And nothing prevents the same situation from arising again in a contemporaneous MDL.  Consider a decision we’ve blogged about already.  In In re Taxotere (Docetaxel) Products Liability Litigation, 995 F.3d 384 (5th Cir. 2021), the MDL plaintiffs defined their “injury” – “permanent” hair loss – as “an absence of or incomplete hair regrowth six months beyond the completion of chemotherapy.”  Id. at 387.  But they simultaneously filed cases on behalf some number of plaintiffs more than a year after that objectively measureable six-month period elapsed (Louisiana also has a one-year statute of limitations):

[W]e look to when the injury was sustained to determine when the prescription period began to run.  As a matter of law, the injury of “an absence of or incomplete hair regrowth six months beyond the completion of chemotherapy” is sustained when, six months after the completion of chemotherapy, a person has an absence of or incomplete hair regrowth.  Here, six months after the completion of chemotherapy, Appellants knew their hair loss had persisted for that length of time. . . .  We agree with the district court that Appellants’ claims are facially prescribed.

Id. at 390.  The plaintiff-side decision to define MDL-wide injury in terms of “six months” undoubtedly left a lot of other Taxotere plaintiffs likewise “facially prescribed.”  Maybe there was no other choice but to define injury in this way, but malcontented plaintiffs, similar to those encountered in Zoster, might not believe it.  Are there enough malcontents to make a difference?  We have no way to tell, but anything that discomfits the other side might be an advantage to ours.

But any significant number of Zoster-style malpractice plaintiffs asserting claims against attorneys running the plaintiff side of any MDL would create serious conflict of interest issues.  As we mentioned earlier, that creates a dynamic wherein every effort to enhance the merits of the MDL plaintiffs’ overall claims would also increase the potential malpractice exposure of those same attorneys who have to decide what to do.  We have no idea what an MDL judge might do when faced with such a conflict of interest, since Zoster is the first instance we’re aware of that injected legal malpractice issues into an MDL.  But in such a situation, defendants might be able to do more than simply pass the popcorn and watch the show.