We know that the Federal Judicial Conference’s Committee on Civil Rules is considering creating a rule specifically applicable to multi-district litigation – which now comprises some 70% of all cases filed in the federal court system. We remain hopeful the new rule will forcefully encourage the early vetting of MDL plaintiffs’ bona fides, since most MDLs ignore the existing rules that require pre-complaint investigation of claims.
The recent decision in In re Proton-Pump Inhibitor Products Liability Litigation, 2022 WL 17850260 (D.N.J. Dec. 12, 2022), provides the latest graphic example that early vetting simply isn’t happening, now, in MDLs.
The Proton Pump MDL is no spring chicken; it was created back in 2017. See In re Proton-Pump Inhibitor Products Liability Litigation (No. II), 261 F. Supp.3d 1351 (J.P.M.L. 2017). But now, after more than five years of litigation, we find this issue just now being resolved:
The relevant facts are not in dispute. The original complaints in the 100 cases . . . allege “personal injury” from the use of PPIs and were filed in the names of plaintiffs who were in fact deceased at the time the complaints were filed.
Proton-Pump, 2022 WL 17850260, at *1 (emphasis added).
Five years into the MDL litigation and only now are complaints improperly filed on behalf of dead people being dismissed. That a person must at least be alive in order to be a plaintiff in litigation is, in our books, just about as basic a legal proposition as there is. Sure, despite some typical MDL everything-is-over-litigated resistance from the plaintiffs, the decision reaches the correct (and only logical) result that these 100 complaints are legal nullities:
[T]he Court finds that the plaintiffs . . . do not have “legal existence.” Thus, their actions are not viable and must be dismissed. To the extent that the [Plaintiffs’ Steering Committee] argues nullity is inapplicable and seeks instead to rely upon Rule 17 to cure deficiencies in the relevant complaints, Rule 17 cannot overcome plaintiffs lack of legal existence. . . . [T]hese suits are nullities ab initio due to the deceased Plaintiffs’ lack of legal existence, thus, Rule 17 never becomes relevant.
Id. at *3-4 (citations and quotation marks omitted).
But dismissing personal injury suits filed by dead people is hardly the point. Law students learn in first-year civil procedure that dead people are not sui juris (legal Latin for having legal capacity to sue), and that a survival action or wrongful death action is necessary. The point is that these utterly meritless lawsuits hung around in the Proton Pump MDL for more than five years before the defendants succeeded in getting something done about them.
The Proton Pump MDL show-cause order that preceded this decision cited three cases for the “legal nullity” proposition: In re Asbestos Products Liability Litigation (No. VI), 311 F.R.D. 152 (E.D. Pa. 2015); In re Engle Cases, 2013 WL 81154422 (M.D. Fla. Jan. 22, 2013); and House v. Mitra QSR KNE LLC, 796 F. Appx. 783 (4th Cir. 2019). 2022 WL 17850260, at *1. In Asbestos, three null complaints were dismissed – after attempted substitutions occurring 9 months, a year and a half, and somewhat less than three years. 311 F.R.D. at 153. In Engle Cases “more than four years” passed before matters came to a head, but those 521 plaintiffs affirmatively concealed the nullity issue until being ordered to answer questions “under oath.” 2013 WL 81154422, at *1. In House – the only traditional single-plaintiff case of the three, the issue became known three months after the improper action was filed, and that action was over and done with less than a year later. 796 F. Appx. at 784.
Cadaver complaints should not clog the federal docket. If the 13,487 “pending” actions in Proton Pump included 100 dead people after five years of litigation, how many more meritless cases remain, involving misidentified (or simply unidentified) products, unsupported injuries, or blatant statute of limitations violations? It should be intolerable for unvetted, uninvestigated claims to be impervious to the ordinary workings of Rules 8, 11, and 12 (at least) of the Federal Rules of Civil Procedure.
Congress intended MDLs to operate “for the convenience of parties and witnesses” and to “promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407(a). Bloated MDL inventories are not convenient, just, or efficient. For the Proton Pump MDL court to dismiss cadaver complaints is clearly the right thing. Better late than never, we suppose. But earlier would be still better − in fact, should be required, which is why the need for new MDL-specific federal rules is so great. The MDL “tail” must not “wag the dog” of the entire federal judicial system.