What follows is from the non-Dechert side of the blog.
The history of the Zantac MDL has been one novel claim after another from the plaintiffs’ side. Fortunately, the vast majority of those ideas have gotten nowhere. That’s what most recently happened in In re Zantac (Ranitidine) Products Liability Litigation, ___ F.R.D. ___, 2023 WL 1797264 (S.D. Fla. Feb. 7, 2023). The plaintiffs filed something entitled “Expedited Motion to Permit Multi-Plaintiff Complaints for Registry Claimants.” This was the plaintiffs’ attempt to avoid paying filing fees for around 58,000 “registry claimants” − who are now obligated to make up their minds and file their complaints – or forever hold their peace.
Plaintiffs had previously agreed that all claims would be filed individually. Id. at *1 (quoting PTO 31, providing that any “Plaintiff who files directly in MDL No. 2924 must file his or her complaint as a Short Form Complaint in a new case”). But now, having accumulated 58,000 clients, the filing fees alone promised to be a significant expense. The filing deadline was fast approaching. It was one month after “the Court entered its Daubert ruling on general causation.” Id. at *2. That, of course, happened on December 6, 2022, and was a total defeat for the plaintiffs. Consequently, for these 58,000 would-be plaintiffs, “it became necessary for [them] to file a case in federal court, if they wanted to appeal the Court’s ruling and avoid the running of the statute of limitations.” Id.
Thus, calling the time-honored practice of each plaintiff filing his or her own claim “perverse,” plaintiffs:
requested that the Court modify the terms of Pretrial Order 31 to permit the Registry Claimants to file one multi-plaintiff complaint per law firm. Because approximately 330 law firms represent the Claimants, the Plaintiffs’ request was for 330 cases to be filed in lieu of over 58,000 individual cases.
This motion was denied for four reasons.
First, the demand for massive multi-plaintiff complaints, grouped solely by the attorneys of record, while ignoring the plaintiffs and their claims, made a mockery of the requirements of Fed. R. Civ. P. 20(a).
Zantac found six analogous MDL attempts to file multi-plaintiff complaints – five of which resolved the issue in favor of individual complaints, and rejected massive consolidations. The earliest of these decisions, reached in 1995, was in Bone Screw, where Bexis (and co-blogger Michelle Yeary, as well) first encountered this type of craziness:
In the Bone Screw MDL, the plaintiffs had the same medical device implanted near their spine. The plaintiffs filed a brief wherein they requested permission to file one multi-plaintiff complaint per judicial district. In a detailed ruling, the Bone Screw court concluded that Rule 20(a) would not be satisfied merely because the plaintiffs had received the same product or resided in the same judicial district. The Bone Screw court left open the possibility that it could be persuaded to permit the joinder of claims in a fact-based grouping, such as a group of plaintiffs who received the medical device at the same hospital.
Zantac, 2023 WL 1797264, at *3 (Bone Screw citations omitted – note, the smaller joinders mentioned in the last sentence of this quotation never actually happened in Bone Screw either).
The other four MDL cases rejecting mass consolidated complaints were In re Diet Drugs, 325 F. Supp.2d 540 (E.D. Pa. 2004) (in which another of our bloggers was involved), In re Baycol Products Liability Litigation, 2002 WL 32155269 (D. Minn. July 5, 2002) (Bexis, again), In re Rezulin Products Liability Litigation, 168 F. Supp.2d 136 (S.D.N.Y. 2001), and Simmons v. Wyeth Laboratories, 1996 WL 617492 (E.D. Pa. Oct. 24, 1996) (involving Norplant). The only contrary order was a two-pager out of the Norplant MDL, In re Norplant Contraceptive Products Liability Litigation, 168 F.R.D. 579 (E.D. Tex. 1996), which the Zantac court found unpersuasive (just as Simmons had before it). Zantac, 2023 WL 1797264, at *4.
Moreover, the facts in Zantac were less amenable to mass consolidation of complaints than any of the prior cases, since Zantac involved multiple manufacturer’s drugs, and the allegedly injurious attribute was a contaminant − not the active ingredient – and a substance that is also “found in trace amounts in water, air, and food.” Id. Thus, “the Plaintiffs are not sufficiently related, factually, for the joinder of their personal injury claims in a single multi-plaintiff complaint.” Id. at *5.
Second, even if the request had been proper under the rules, in its discretion the court would have severed the proposed multi-plaintiff complaints anyway. Rule 20(b) gives courts “discretion to sever . . . to protect a party from delay, expense, or other prejudice.” Id. (footnote omitted). The massive joinders that the Zantac plaintiffs proposed were blatantly prejudicial:
As for the potential prejudice for the Defendants stemming from a joinder of thousands of Plaintiffs in a single complaint, the prejudice is readily apparent. Suffice it to say that if “the strongest jury instructions” could not protect the defendants . . . from unfair prejudice in a ten-plaintiff . . . case, jury instructions would certainly not protect the Defendants in this MDL from the prejudice flowing from a thousand-plaintiff personal injury case.
Id. at *6 (discussing Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000)). “[I]t is self-evident, and beyond any real dispute, that it is impractical − even impossible − to litigate [these] personal injury claims in large, law-firm-based pleadings that do not take into account the claims’ judicial district of origination.” Id.
Zantac also considered the prejudicial impact of plaintiffs’ consolidation on the legal system itself – specifically that it was a transparent attempt to cheat the federal court system of the filing fees necessary to process the large number of claims that plaintiffs had solicited. Abuse of consolidation to evade filing fees was impermissible. “Rule 20 does not permit claims to be joined solely to reduce filing fees; the Clerk’s Office imposition of a filing fee is never contingent upon a plaintiff’s ultimate success, and the standard for Rule 20 joinder is not any approach that ‘the Court deems fair.’” Zantac, 2023 WL 1797264, at *6. The number of plaintiffs with separate claims per complaint “deemed fair” in Zantac was thus what the Federal Rules have contemplated since their inception – one.
Bending the rules to facilitate the plaintiffs’ mass-tort business model would not be tolerated. Filing fees prevent “abusive settlement tactics” by making suits involving many parties that much more expensive. They are thus “a threshold barrier, albeit a modest one, against the filing of frivolous or otherwise meritless lawsuits.” Id. (citation and quotation marks omitted).
[T]he Plaintiffs’ proposal is certainly a “low cost, low risk” proposal. It is “low risk” in the sense that the Plaintiffs’ proposal is really to avoid the payment of filing fees entirely, if they lose on appeal. It is “low cost” in the sense that the Plaintiffs seek to bundle thousands of personal injury Plaintiffs into the same complaint and avoid the expense normally associated with separate cases.
Quantifying the “low cost” element of the Plaintiffs’ proposal, the filing fees for 58,000 cases would exceed $20,000,000. Under the Plaintiffs’ one-case-per-law-firm proposal, however, the filing fees would be reduced to slightly over $100,000, or a 99% reduction of filing fees, with the balance only to be paid if the Plaintiffs are successful on appeal.
Zantac, 2023 WL 1797264, at *7 (footnote omitted). Essentially, plaintiff’s counsel collected all these cases so they could use sheer numbers to increase settlement pressure whether or not any of the claims had merit. That’s not how the federal court system is supposed to work. “[I]f the Plaintiffs believe that their claims and their appeal [from the Zantac Rule 702 decision] are not frivolous, it is incumbent upon the Plaintiffs to pass through the barrier for frivolous claims and pay the requisite fee.” Id. Plaintiffs have to put their money where their mouth is, at least as to filing fees. Id. (“Plaintiffs must file separate cases and pay the necessary filing fee for each case”).
Third, the general law applicable to consolidations was overwhelmingly against plaintiffs’ law firm-based multi-plaintiff complaint proposal, and plaintiffs refused the Court’s invitation to seek consolidation of claims brought by “factually similar Claimants” rather than by law firm. Id. at *8 n.17. Additional briefing also occurred.
On the consolidation issues, we hope that the defendants found our prior work in this area useful. The Zantac decision diligently worked its way through what must have been a law-review level (or at least a Bexis-research-blogpost level) of briefing of consolidation/severance case-law.
While this Zantac decision will be an excellent citation source for anyone litigating Rule 20 issues in future product liability cases, we’re skipping straight to the bottom line. The defendant’s additional cases were more persuasive than the plaintiffs’ because:
- Plaintiff’s citations were not “analogous to this MDL,” where the proposed consolidation has nothing to do with the underlying facts of any case.
- “Plaintiffs’ cited cases involved closer, more factually-related plaintiffs than this MDL,” and “[n]one of the Plaintiffs’ cited cases resemble the allegations in this MDL, which span several decades and involve [unusual] specific causation questions.”
- “Defendants have provided a large amount of pharmaceutical litigation case law where joinder was found not to be appropriate, and the Plaintiffs have elected not to reply or distinguish that case law.”
- Plaintiffs completely ignored any “factual relationship between the Claimants that would permit multiple Claimants to be joined.”
- Even in the plaintiffs’ best case, “the district court severed each plaintiffs’ case” – a fact plaintiffs omitted entirely.
Zantac, 2023 WL 1797264, at *10.
Fourth, the plaintiffs had earlier agreed to individual filing and they would not be allowed to renege once the litigation wasn’t going their way. “[T]he parties’ prior agreement on this subject dispels all doubt . . . that the Plaintiffs’ Motions should be denied.” Id. Plaintiffs agreed to an “individual-case requirement,” and for “good reason” – settlement is not the only purpose of an MDL:
[O]ne day each case must be remanded to its home district. The individual causation inquiries for each Plaintiff are distinct and complex. In light of the size of this MDL, the Court should not have to sift through tens of thousands of Plaintiffs in multi-plaintiff complaints and enter orders of severance.
In Zantac, the MDL plaintiffs’ counsel tried to eliminate one of few remaining risks to their solicit-everywhere-and-file-everything mass tort business model – the requirement to pay the same filing fee as every other plaintiff. They could not turn it into a no-lose situation where they only have to pay a filing fee should they succeed in the current Rule 702 appeal. We can see why, with the solid Rule 702 dismissal order on appeal (on an abuse-of-discretion standard of review), they (or their litigation financers?) aren’t keen to pony up another twenty million dollars. But litigation, like elections, should have consequences for both the winners and the losers.
The moral of this Zantac opinion is don’t solicit 58,000 cases if you’re not prepared to pay 58,000 filing fees.