We would have to dig deep to find a drug or device MDL that did not involve some form of plaintiff fact sheet or profile form. The idea behind such a discovery vehicle is that while case specific discovery lags behind general discovery, defendants are entitled to certain basic information about plaintiffs and their claims and alleged injuries. As sure as an MDL has a plaintiff fact sheet requirement, it also has a process for dealing with plaintiffs who fail to complete them. There is usually some sort of notice and cure period, sometimes followed by an order to show cause. See e.g., Order, In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-MD-02734 (N.D. Fla. Jan. 31, 2019), ECF No. 1112 (ordering over 400 plaintiffs to show cause why they failed to meet plaintiff fact sheet obligations). But almost universally the last step in the process is a motion to dismiss. See, e.g., In re Gen. Motors LLC Ignition Switch Litig., 2017 WL 9772106, at *1 (S.D.N.Y. June 16, 2017) (ruling that “dismissal with prejudice is the appropriate sanction for Plaintiffs’ continued failure to submit PFSs as required by” court order); In re Lipitor (Atorvastatin Calcium) Mktg., Sales Pracs. & Prods. Liab. Litig., 2015 WL 12844447, at *2 (D.S.C. June 19, 2015) (granting motion to dismiss for failure to submit plaintiff fact sheets).
Having been involved in as many MDLs as the authors of this blog have – knowledge that has both depth and width – we have heard virtually every version of justification and/or excuse for why a plaintiff fact sheet was not submitted. They range from mea culpas for having missed a deadline but offering a quick correction to elaborate tales of woe that rival anything you can find on daytime TV (scripted or “reality”). Often the fault lies at the feet of the plaintiff herself who despite phone calls, emails, and certified mail simply does not respond to her attorney. But sometimes plaintiffs’ counsel just drops the ball.
Such was the case presented to the Seventh Circuit in In re Cook Medical, Inc., IVC Filters Marketing, Sales Practices, and Products Liability Litigation, — F.4th –, 2022 WL 594276 (7th Cir. Feb. 28, 2022). The Cook IVC Filter MDL has a requirement for each plaintiff to complete a profile form with general personal and medical information. If a plaintiff fails to submit a timely fact sheet, defendants are permitted to move to dismiss. Id. at *1. In this instance, defendants notified plaintiffs’ counsel that they had not received fact sheets for four of his clients. Having received no response, defendants moved to dismiss. The motion was not responded to, so the court dismissed the cases. Over one year passed with no word from plaintiffs’ counsel. That was until he learned from one of his clients that the cases had been dismissed. For over one year he had taken no steps or actions that would have alerted him to the status of his cases – including simply checking the docket. Id.
Thirteen months after dismissal, plaintiffs’ counsel filed a motion for reconsideration and reinstatement of the cases alleging that he did not receive an electronic docket notification of the filing of the motion to dismiss and he was unaware of the dismissals themselves because “new filtering rules to his email inbox” sent the orders to his junk folder. Id. The district court denied the motion for reinstatement as untimely under Federal Rule of Civil Procedure 60(c)(1) and even if timely, found that inexcusable attorney neglect is not grounds for reconsideration. Id. On appeal, the dismissals were reviewed for abuse of discretion.
Rule 60(b) provides the reasons reconsideration may be granted, including for “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P 60(b)(1). The rule also has a catch-all provision allowing a court to entertain reconsideration for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). All Rule 60 motions must be made “within a reasonable time.” But where the request is based on paragraph (b)(1), a “reasonable time” is expressly defined as “no more than a year after the entry of the judgment or order” at issue. Fed.R.Civ.P. 60(c)(1). Putting aside whether the neglect was excusable or not, plaintiffs’ motion for reconsideration was “clear that the plaintiffs’ failure to oppose the motion to dismiss is attributable solely to [their attorney’s] negligence.” Id. at *2. That also made it clear that the motion was being brought under Rule 60(b)(1) and therefore the one-year time limit applied. Id.
So, the next question was whether Rule 60’s time limit could be extended. The court cites a line of appellate and Supreme Court authority discussing the difference between jurisdictional and claims processing rules. Id. at *2-3. But ultimate holds that the distinction is irrelevant because “[m]andatory claims-processing rules, if properly invoked, must be enforced.” Id. at *3. Defendants raised untimeliness in opposition to plaintiffs’ motion, therefore, the district court did not abuse its discretion in denying the motion on those grounds. Id.
Plaintiffs tried to get around the time limit by arguing their motion was also brought under Rule 60(b)(6)’s catch-all provision to which the one-year deadline does not apply. But the court was unwilling to allow the catch-all to swallow the other alternative grounds. In other words, you cannot argue excusable neglect more than a year after the dismissal by calling it a subsection (6) “other reason.” Plaintiffs’ motion was premised on only one reason – their attorney’s neglect in both the “mishandling of the submission of his clients’ profile forms and, even more, his inattentive monitoring of both the docket and the email notifications from the district court.” Id. There were no circumstances, extraordinary or otherwise, to suggest that plaintiffs’ attorney was “faultless in the delay” such that Rule 60(b)(6) should be applied.
The court recognized that it was plaintiffs who suffered the worst of the consequences. But they could find no abuse of discretion by the district court.
Lawyers make mistakes. Sometimes they are small and fixable. Other times the consequences are inescapable.
Id. at *1. This was the latter.