The unwieldy and sometimes unfair nature of multidistrict litigation has become a recurring theme on the DDL Blog. We have long commented on the “if you build it, they will come” dynamic that leads to hundreds or thousands of cases gathered, filed, and then parked in an MDL—all hoping to do as little work as possible while waiting for a global settlement. The masses of cases being filed in and transferred to MDLs has created a now-familiar pattern: MDLs often start by facilitating and allowing the amassing of even more cases, arguably under means that are outside the Federal Rules of Civil Procedure. Take for example “direct filing” procedures, under which plaintiffs can file directly in an MDL transferee district without regard to venue rules or personal jurisdiction. Or how about “master complaints” that provide an umbrella for thousands of plaintiffs to file their claims (sometimes by merely checking boxes), without any genuine opportunity to test the basis for any plaintiff’s claim. Some MDLs have even allowed plaintiffs to lodge their claims without actually filing them, thus avoiding filing fees in thousands of cases and potentially allowing those claimants to wait and see. We could go on (and Bexis has, here).
At some point though, judges say enough is enough and start drilling down on the plaintiffs’ cases and become less forgiving. Our defense-side bias leads us to believe that the point of all this is to pressure defendants into mass settlements, but we don’t want to judge too harshly. Whatever the reason, the rules kick in at some point and the plaintiffs no longer get a break.
That’s good, but our beef is that it takes far too long. We wrote a few weeks ago about a good Lone Pine order entered in the Taxotere MDL—but only after four years of urging by the defendants. Another recent post reported on a case where the judge denied the plaintiff’s motion to amend her complaint. That was good and fair too—but the plaintiff made her motion six years after filing her complaint.
The most recent example is another Taxotere case, one remanded from the MDL along with hundreds of other cases. The plaintiff in Sherratt v. Sanofi US Servs. Inc., No. #:23-cv-00580, 2024 U.S. Dist. LEXIS 33866 (D. Nev. Feb. 28, 2024), wanted to take punitive damages discovery after discovery had long been closed. We understand why. Having failed under the most basic strategy—lay low and do as little as possible while waiting for a group settlement—this remanded plaintiff could no longer hide in the weeds. So what better way is there to coerce the defendant into paying more in an individual settlement than reopening discovery into “punitive damages.”
The district court on remand said no. The MDL judge had allowed the MDL plaintiffs to conduct extensive general merits discovery against the defendant for the benefit of all MDL plaintiffs. That included discovery into issues affecting punitive damages, without regard to whether the applicable law in a given plaintiff’s case would actually permit the introduction of such evidence at trial. Id. at *2-*3. The plaintiff in Sherratt was present for all of this, but somehow they claimed that it was not enough.
The remand judge shut that down pretty quickly, first because the MDL plaintiffs already took a boatload of discovery:
According to [Defendant], the general merits discovery against it remained open for 16 months in the MDL and included: “(1) the production of more than 576,100 documents (or 6,320,000 pages) from 43 separate custodians, (2) depositions of 28 current and former . . . employees (including . . . 30(b)(6) witnesses), and (3) responses to more than 160 written discovery requests.” . . . [T]he discovery effort focused on what [Defendant] knew or should have known about the alleged injury in this litigation “across different functional areas within the company, including pharmacovigilance, medical, safety, regulatory, labeling, marketing and sales, among others.”
Id. at *3-*4. This description is useful and compelling, and most every defendant in an MDL is able to roll out similarly impressive numbers. The linchpin, however, was that general discovery closed more than five years ago:
[G]eneral merits discovery against [Defendant] (which included punitive damages discovery) closed on December 15, 2018. Any remaining discovery was to be “case specific,” which was described as the collection of records and depositions of the plaintiffs and plaintiff’s health care providers, spouses, friends, family, and case-specific expert discovery.
Id. at *4. The plaintiff could not show (and did not even really attempt to show) that extraordinary circumstances existed that would justify reopening general discovery, including punitive damages discovery. Id. at *5-*6.
You could see this as one case where a plaintiff failed to meet his or her burden to receive some special dispensation, but we prefer to see this as part of a larger narrative. There are rules, and rules apply—just not as soon or as consistently as they should. The plaintiff here was not allowed to take further discovery against the Defendant; one of the plaintiffs mentioned above was not allowed to amend her complaint; and a whole bunch of plaintiffs in the Taxotere MDL now have to comply with a Lone Pine order and actually demonstrate that they have even arguably viable claims.
So again, the rules apply, but why did it take so long? This is our frustration with MDLs. We appreciate judges who promote efficiency and employ some creativity in managing large caseloads. But we continue to believe that MDL judges can accomplish all that while predictably applying the regular rules of the road along the way (and we can think of numerous examples where MDL judges have done just that). There is no reason to wait.