The In re Smith & Nephew Birmingham Hip Resurfacing Hip Implant Products Liability Litigation MDL (“In re BHR MDL”) has disappointed us in the past with its early decisions on preemption, but had rebounded in its summary judgment rulings on individual bellwether cases. Unfortunately, when asked to apply that individual case analysis to a larger group of cases, we were again left wanting.

Based on the most recent decision coming out of the MDL, all we can say is we think it has forgotten it is an MDL.  Congress codified MDLs in 28 U.S.C § 1407 with the intended goal to reduce the burden on federal district courts.  To promote efficiency in situations when civil actions in different district courts involve common questions of fact, MDLs allow such cases to be consolidated and transferred to a single district court for pretrial proceedings.   The transferee judge is then charged with dealing with pretrial discovery and issues common across all cases.  If the cases do not resolve at the conclusion of that phase, they can be transferred back to their original courts for trial and final resolution.  What should not happen is allowing remand when a significant common issue of fact that does not turn on case specific evidence is left unadjudicated.  A question such as when a defendant knew or should have known of the risks at issue in the litigation.  That does not change from case to case and pushing that off as a case specific issue ensures only one thing—that the question will be answered differently and inconsistently defeating the very purpose of the MDL. 

In re BHR has had several bellwether cases involving plaintiffs who underwent surgery at different times.  In the course of those cases, plaintiffs (including those represented by MDL leadership) have had to develop their evidence and arguments regarding at what point in time defendant had information that made its warnings and representations inadequate, false, or misleading.  Evidence that would have been developed during general liability discovery, which is “largely complete.” In re BHR MDL, 2023 U.S. Dist. LEXIS 123112, *60 (D. Md. Jul. 13, 2023).  Evidence which has led to “plaintiffs’ long-standing focus” on the defendant’s receipt of Australian ad hoc data in 2009.  Id. at *61 (emphasis added).  Evidence which the court considered in granting summary judgment to defendant in Sedgwick v. Smith &Nephew, Inc., 2021 U.S. Dist. LEXIS 157412 (D. Md. Aug. 19, 2021) involving a plaintiff who had implant surgery in 2007 (discussed here).  In other words, the evidence adduced at summary judgment and trial in the bellwether cases is that up until 2009, defendant has a state of the art defense.  So, it should not have come as a surprise to the court or to plaintiffs when defendant moved for summary judgment in all cases involving implant surgeries that took place prior to the key date in 2009.  That is in fact the purpose of an MDL and bellwether cases.  To identify and resolve issues that cut across tranches of cases.  In this instance, cases involving early implant surgeries. 

Instead, the court viewed defendant’s motion as seeking “sweeping relief” and found that a “one-size-fits-all” approach would not work for this issue that requires case-specific discovery.  In re BHR MDL, at *61.  The court acknowledged it had already ruled on the issue in Sedgwick where plaintiff had only “some minimal” pre-2009 evidence and not enough to overcome summary judgment.  The only difference between then and now seems to be the deposition of an Australian researcher who claims to have sent earlier ad hoc reports to defendant.  Those reports, however, were not disaggregated by company, but rather included all resurfacing devices.  Id. at *64.  Also, the deposition was considered by the court and rejected as warranting a new trial in another bellwether case (see here).  We are not sure how “minimal” evidence before defendant moved for summary judgment transformed to a “hotly contested” issue after other than the changing of plaintiffs’ tune.         

Somehow plaintiffs also got away with claiming that in every case they needed “case-specific” discovery, primarily on physician reliance.  First, you only get to reliance if there is evidence of a misrepresentation which is a general issue that the court should decide and has already decided but is refusing to apply across cases.  Second, plaintiffs’ generalized claim of needing more discovery was contrary to Rule 56(d), which requires an affidavit of “specific reasons” why additional discovery is required before summary judgment can be considered.  Although the relevant appellate court places “great weight” on this affidavit requirement the MDL judge ignored it – accepting plaintiffs generalized, non-cased-specific arguments.  Id. at *69.  For instance, the court found persuasive plaintiffs’ argument that that “[i]t would be quite difficult” for plaintiffs “to know what misrepresentations [the defendant] made to their doctor.”  Id. at *70.  Really?  Plaintiffs have unrestricted access to their treating physicians, whereas defendants generally do not.  Rule 56(d)’s affidavit requirement gets trumped by the litigation being an MDL:  “Given the procedural peculiarities of multidistrict litigation, a more lenient approach to Rule 56(d) may be appropriate.”  Id.  So much for those decisions holding that the federal rules apply equally to MDLs.  The ruling lets the plaintiffs get away with not doing any case specific investigation of their own treaters–even after the litigation has been going on for years–in favor of a global “need more discovery” claim (without any supporting case-specific affidavit). 

And it seems the court has decided this is an issue that can await remand.  The order does not include a direction that the necessary case-specific discovery proceed. Instead, in a footnote the court indicates that the case-specific discovery “need not impose a significant time or resource burden on the parties or transferor courts post-remand.”  Id. at *72, n.11.  But that is exactly what it will do if the answer to the initial question is there was no misrepresentation because defendants’ statements and warnings to physicians prior to 2009 were accurate based on its knowledge at that time.  Setting the issue up this way is asking courts and juries around the country to decide the general issue of when the defendant learned of the risks at issue leading to the precise inefficiencies and inconsistencies MDLs were created to avoid.