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In the last couple of years we have gone to plenty of Multidistrict Litigation (MDL) court conferences.  We’ve also gone to plenty of bench-bar conferences about MDLs. From the defense point of view, the key issues are early vetting of cases, even-handed discovery, and avoidance of bellwether trials where the deck is stacked in favor of the plaintiffs.  In addition, in both types of conferences, issues will arise about relationships among the plaintiff lawyers. Who will be on the Plaintiff Steering Committee (PSC) or Plaintiff Leadership Committee (PLC)? To what extent do the members of the PSC or PLC owe fiduciary duties to non-clients? What percent of recoveries go to the common benefit fund?  

We mostly daydream during these discussions. It’s not our fight.   

But sometimes our voyeurism gets the better of us. Sometimes the plaintiff lawyer issues get more contentious than anything involving plaintiff-defendant dynamics.  And sometimes the gamesmanship among the plaintiff lawyers can resemble a train wreck.  It can be hard to avert one’s eyes from the carnage.   The biggest victims are often the people that the plaintiff lawyers claim to be helping — the actual plaintiffs. 

The recent case of Drake v. DePuy Orthopaedics, Inc., 2024 U.S. Dist. LEXIS 39715 (N.D. Ohio Feb. 6, 2024), is an example of some of the ugliness going on behind the scenes in an MDL. Despite the styling of the case caption, the beef here was between the plaintiff and his former lawyer about how much money the latter could extract from the former.  The former lawyer claimed to be entitled to an enormous chunk of the plaintiff’s recovery. Therefore, the battle here was between the plaintiff and the lawyer  “claimant.”

The litigation began the way these things often do – with a lawyer advertisement.  The plaintiff was a Minnesota resident who had hip replacement systems implanted in both hips. Then he learned of the manufacturer’s 2010 recall of the hip systems. He learned that because he saw an advertisement from a law firm in Texas.  The plaintiff responded to that attorney ad, but did not immediately sign up with that lawyer.  Over the next year and a half the claimant’s firm bombarded the plaintiff with 57 follow-up calls or emails, an average of 3.56 times per month, eventually wearing him down so that he finally signed an attorney representation agreement (ARA)    Big mistake. The ARA contained a 40% contingency fee provision.  It contained something else that you’ll learn about in a few moments.  Talk about stacked deck. 

From what we gather from the court opinion, nothing much happened thereafter for a good long while with the plaintiff’s case.  Did we mention that this was an MDL?

Eleven months later, the plaintiff decided to hire new counsel, closer to where the plaintiff lived.  The original lawyer (the claimant) then filed a short-form complaint in 2012 in the MDL on “behalf” of the plaintiff.  How thoughtful. The plaintiff terminated the ARA, and his new counsel filed a complaint in Minnesota.  That new complaint was removed and transferred to the MDL to join the plaintiff’s 2012 complaint.  What a mess.  The 2012 action filed by the original attorney (the claimant) was ultimately dismissed, subject to the disputed “right” of that attorney/claimant to take a 40% contingent fee from any recovery.  

The plaintiff opted into the settlement agreement negotiated between the PLC and the defendants, and secured a settlement of $561,750. Not bad. But then the original counsel/claimant invoked a one-sided arbitration agreement giving the attorney the right to choose the arbitrator (this fact is from the prior Sixth Circuit opinion) and conduct the arbitration in the attorney’s home state. The arbitrator found for the claimant, and in addition to the contingent fee (cut to a still, er, robust 35%) awarded attorney fees and costs – the result being that the arbitrator awarded the original, claimant attorney $353,214.97. All told, that means the original, claimant attorney took 62.88% of the underlying settlement for doing nothing more than belatedly filing a form complaint after being told he was on the outs with his client.  

The plaintiff filed a motion to vacate the arbitrator’s award and the claimant attorney filed a motion to confirm it. The MDL court deemed that recovery by the claimant attorney to be “unconscionable” and struck the arbitrator’s award.  But unfortunately for the plaintiff, the Sixth Circuit (2-1) reversed the MDL judge’s vacation of the arbitration award (such awards being extremely difficult to overturn), and the claimant lawyer is going to get the money.  (Imagine the stink if a corporate defendant attempted to enforce such a brutal, one-sided contract.)

The plaintiff argued to the MDL court on remand that the Sixth Circuit’s ruling was “narrow” and left the MDL court room to overturn the arbitration on other grounds   The MDL court “regrettably” concluded that the Sixth Circuit left no such room. The MDL court was forced to confirm the arbitrator’s award. It ordered the “Clerk of the Court to close this case.”  It is a rotten result.  It is also further evidence that MDLs are vast sadness machines.