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Not too long ago, we discussed the excessive indulgence of do-nothing plaintiffs in the Taxotere MDL – letting plaintiffs who took years just to serve their complaints slide. 

Today we present In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, 2022 WL 3309471 (E.D. Pa. Aug. 11, 2022), as something of a counterpoint.  While failure to serve plaintiff fact sheets for nearly 18 months isn’t as egregious as not even serving a complaint for five years, at least we can report that one MDL judge isn’t inclined to indulge tardy, do-nothing plaintiffs.

Zostavax involved the kind of plaintiff lethargy that we’re used to seeing in MDLs.  The plaintiff – after taking only six weeks to serve her complaint – then decided that was enough.  She had three months to serve her plaintiff fact sheet (“PFS”) along with the supporting documentation.  She didn’t.  Id. at *1. The defendant successfully moved to compel.  Plaintiff blew that deadline, too.  Id.  The defendant then moved to dismiss.  That 2×4 finally got some action out of the mule:

It was not until . . ., approximately a year and a half after the PFS was originally due, that [plaintiff] finally served her PFS together with certain required documentation.  [Plaintiff’s] counsel has never provided any basis for the delay.


If this plaintiff thought this defendant would just acquiesce, she had the wrong defendant – and the wrong judge.  The defendant pursued the motion to dismiss that plaintiff’s lassitude had forced it to file, and the MDL court granted it.

The Zostavax MDL is in the Third Circuit, and a with-prejudice dismissal sanction must meet a six-factor test:

(1) the extent of the party’s personal responsibility; (2) prejudice to the adversary; (3) a history of dilatoriness; (4) whether the conduct of the party was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal; and (6) the meritoriousness of the claim or defense.

Id. at *2 (citation and quotation marks omitted).

The first factor was easy.  Plaintiff made the bed, and has to lie in it.  “[S]ole responsibility for [plaintiff] not timely producing her PFS lies squarely with either her or her counsel.”  Id.

The second factor is where Zostavax departed most notably from Taxotere.  The latter was rather economical with what it considered prejudicial.  The “lengthy” delay couldn’t “threaten[] the integrity of the judicial process” because those tardy plaintiffs were “in the same or substantially similar stasis as the thousands of other non-bellwether plaintiffs in this MDL.”  In re Taxotere (Docetaxel) Products Liability Litigation., 2022 WL 2952965, at *2 (E.D. La. July 26, 2022).  In other words, since very few of the MDL plaintiffs have to do anything at all, who cares about five years of delay?

Not so in Zostavax.  The delay itself was prejudicial:

[T]he delay in serving [plaintiff’s] PFS has prejudiced [defendant].  Without access to basic information . . ., [it] is unable to mount its defense because it has no information about the plaintiff or the plaintiff’s injuries outside the allegations of the complaint. . . .  In addition, there is significant time pressure on [defendant] to investigate the claims of more than 2000 plaintiffs.  For these reasons, the danger of prejudice [is] substantial.

2022 WL 3309471, at *2 (citations and quotation marks omitted).  It all depends on how much one cares about the Federal Rules of Civil Procedure – particularly Rule 1, that procedural rules “should be construed, administered, and employed . . . to secure the just, speedy, and inexpensive determination of every action and proceeding.”  Some MDLs are treated as an exception to this rule.

Factor three was another gimme.  Plaintiff displayed “a history of dilatoriness” by “failing to observe the court’s deadlines.”  Id.  Only after the defendant moved to dismiss did plaintiff attempt “to comply with this basic discovery obligation.” Id.

Zostavax did not deal separately with factor four – willfulness and bad faith.  However, the decision did describe plaintiff’s delay as both “brazen” and “glaring.”  Id.

Factor five is another point of departure between Zostavax and Taxotere.  The effect of dilatory conduct on the administration of the MDL itself mattered in Zostavax:

[T]he court doubts the effectiveness of any sanction other than dismissal with prejudice.  Ensuring obedience to discovery orders in an MDL is paramount. Sound management of the court’s docket counsels in favor of sanctions as a deterrent to others, particularly in the context of an MDL proceeding where there are thousands of plaintiffs. . . .  Giving preferential treatment to a plaintiff who defies discovery obligations may cause other plaintiffs to perceive an opportunity to flout the discovery schedule, too.  The court will not tacitly condone discovery abuses by the glaring delay in serving the PFS here.

2022 WL 3309471, at *2 (citations and quotation marks omitted).

Given all of the other findings, factor six didn’t really matter.  By her own delay, plaintiff prevented any independent evaluation of the merits of her case.

Zostavax is an MDL, so this is only one less plaintiff out of some 2000.  But it is refreshing to see that somebody actually cares about whether plaintiffs follow the rules.