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Some things make sense only in the topsy-turvy, litigate-everything-to-death world of multidistrict litigation.  One recent example is In re Taxotere (Docetaxel) Products Liability Litigation, 2023 WL 2982464 (E.D. La. March 8, 2023), where MDL-related considerations led a defendant to oppose a plaintiff’s motion for voluntary dismissal with prejudice.

Why?  Think chess.  In MDLs the other side treats plaintiffs like pawns, regularly sacrificing them in the hope of putting one or more defendants in zugzwang (a chess term for forcing an adverse move).  That’s what happened in Taxotere

The preliminary moves in Taxotere involved generic preemption.  As we discussed here, three generic manufacturers sought preemption-based dismissal – an entirely reasonable response, but one that’s a bit more nuanced than your average generic preemption situation, given that these particular generics are regulated under Hatch-Waxman’s 21 U.S.C. §355(b)(2), pathway rather than through the much more common ANDA addressed in PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011).  This is an MDL, so all too often the goal of forcing settlement trumps legal precedent.  Our prior post discussed how, bizarrely, generic preemption in Taxotere was decided with reference to branded – not generic – caselaw.  See In re Taxotere (Docetaxel) Products Liability Litigation, 2022 WL 3042639, at *8 (E.D. La. Aug. 2, 2022) (“adopt[ing]” the “approach” in Silverstein v. Boehringer Ingelheim Pharmaceuticals, Inc., 2020 WL 6110909 (S.D. Fla. Oct. 7, 2020)), certification granted, 2022 WL 16923721 (E.D. La. Nov. 14, 2022).

Essentially, the only good thing about the Taxotere generic preemption decision is that it was ultimately certified for appeal to the Fifth Circuit.  We believe that this appeal will be the first time a federal court of appeals has considered preemption and §355(b)(2).

Which leads us to today’s decision.

The three generic manufacturers appealed, and the plaintiffs, in response, sought to sacrifice a pawn – a plaintiff named Conley, who had the misfortune of being one of the three plaintiffs whose cases served as a vehicle for the earlier preemption rulings.  2023 WL 2982464, at *1.  Before the Fifth Circuit could act on the proposed petition to accept the certified appeal, however, Conley filed a notice voluntarily dismissing her entire case with prejudice.

Something peculiar about Conley’s case evidently made the plaintiffs decide to ditch that case while continuing with the other two manufacturers’ appeals.  Conversely, the defendant in the Conley case wanted to be heard as a full party-appellant in the latest Taxotere appeal.  The Fifth Circuit granted the petitions filed by the two other defendants, but remanded the Conley appeal back to the MDL to determine “whether Plaintiff Conley’s action was properly dismissed.”  Id.

Ultimately plaintiffs were allowed to sacrifice their pawn.

Plaintiff first attempted to claim that an MDL pre-trial order allowed her to avoid using Fed. R. Civ. P. 41 – the general federal rule governing dismissals – altogether.  That didn’t work because, as a trial pool plaintiff, she wasn’t covered by that order.  Id. at *2.  Horror of horrors!  An MDL plaintiff would actually have to follow the Federal Rules of Civil Procedure.

Where, as here, the pleadings were complete, Rule 41(a)(1) requires either the defendant’s consent – which this plaintiff obviously didn’t have – or “court order, on terms that the court considers proper.”  Even though this plaintiff “did not seek a voluntary dismissal until after [defendant] filed a Motion for Summary Judgment, this Court denied [that] Motion and certified its Order for interlocutory appeal, and [defendant] filed a Petition for Permission to Appeal,” id., Taxotere allowed dismissal without conditions, and thus allowed plaintiffs to control the circumstances of the defendants’ appeals. So this plaintiff completely ignored Rule 41(a)’s requirement of a prior court order, and got away with it.

Ordinarily, it is rather hard to find that a plaintiff’s complete dismissal with prejudice is prejudicial to the defendant.  Taxotere, 2023 WL 3075403, at *3.  “’A dismissal with prejudice generally does not legally harm the defendant’ because it functions as ‘a complete adjudication of the issues presented by the pleadings and is a bar to a further action between the parties.’”  Id. (citations omitted).  But MDL litigation is three-dimensional chess, not tic tac toe.

[Defendant] maintains that it will be prejudiced because Plaintiff’s voluntary dismissal is an improper attempt to avoid an imminent adverse ruling on the Fifth Circuit’s pending review of this Court’s denial of [its] Motion for Summary Judgment.  In other words, [defendant] contends that it is prejudiced because a dismissal would deny it a favorable judgment on the merits of its preemption defense.

Id.  That wasn’t prejudicial, Taxotere held, because a with-prejudice dismissal “‘is tantamount to a judgment on the merits.’”  Id. (citing Schwarz v. Folloder, 767 F.2d 125, 130 (5th Cir. 1985)).

Schwarz, however, was a one-off securities case where all of the plaintiffs had been dismissed.  The fight was over entitlement to costs and fees, not anything substantive.  767 F.2d at 128.  Thus, the whole point of an appeal in an active MDL – the stare decisis effect on thousands of remaining cases – was submerged.  Sure, in a one-off case, “a defendant is entitled only to the protection of its legal rights, not to a cleansing of the stench emitted by the plaintiff’s complaint,” id. (also quoting Schwarz), but when the same stench of clearly preempted claims permeates hundreds or thousands of still-active cases, the considerations are rather different.

Taxotere, however, poo-pooed these concerns.  That the dismissed case “is part of an MDL does not alter the Court’s conclusion.”  2023 WL 3075403, at *3.

[Defendant] itself concedes that the legal issues underlying the petitions for permission to appeal filed by [the three generic defendants] are essentially the same.  [Defendant] will, therefore, receive guidance on an issue common to all of the active cases against [defendant] in this MDL.

Id.  But as anyone who has ever argued preemption knows, “legal issues” aren’t everything – facts matter.  Something caused the plaintiffs to dismiss one, but not other two, of the cases being appealed.

Maybe this defendant’s FDA regulatory history differs in some significant way from the other two appellants.  Plaintiff Conley’s own facts, silhouetted against that regulatory history, might also be materially different.  Yet this plaintiff’s belated shenanigans were allowed to force the defendant to the appellate sidelines when its interests are massively impacted.  Just wait.  In the event of a preemption-based reversal (which we think is quite likely), plaintiffs will surely try to invent some distinction why that ruling shouldn’t apply to this defendant.  That is as inevitable as the belated “supplemental” expert reports MDL plaintiffs file after remand.

The decision’s closing line – “an MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone,” id. at *4 (quoting In re National Prescription Opiate Litigation, 956 F.3d 838, 841 (6th Cir. 2020)) − only adds insult to injury.

That is precisely what does not happen in MDLs when it comes to defendants’ procedural rights.  MDLs frequently disregard the Federal Rules of Civil Procedure at every turn.  The rules regarding pleading are entirely ignored.  Defendants are not allowed take the discovery they are entitled to under the rules against the 99% of the plaintiffs who are not designated as bellwether/trial track.  Defendants must suffer through hideously expensive electronic discovery, while the same 99% of plaintiffs get away with producing nothing.  Dispositive motion practice – also provided in the rules – is precluded or deferred as “case specific” until becoming meaningless.  Only when, as here, the application of some general procedural rule favors the plaintiffs (and reduces chances of appellate reversal) is the usual “MDLs are different” rhetoric replaced by this kind of pious reliance on the general applicability of the federal rules.