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McMillian v. Sanofi-Aventis U.S. LLC, 2024 U.S. Dist. LEXIS 44783 (March 13, 2024), is another example where a court shot down a belated, post-remand attempt by a Taxotere plaintiff to change the allegations of her complaint. You might think that we will mimic some of our earlier posts about remand courts fixing a mess created by a Multidistrict Litigation (MDL) court.  Not so. In this instance, both the MDL and remand courts clamped down on MDL plaintiff mischief. What sort of mischief?  Filing slapdash short-form complaints, parking frail cases for years, then waking up, realizing the case is rickety, and insisting on a last-minute (or past deadline) makeover of the case.

First, some general background.  Thousands of plaintiffs alleged that Taxotere, a chemotherapy drug, caused them to suffer permanent hair loss. The cases were collected in a MDL in the Eastern District of Louisiana.  

Next, our camera focuses on the individual plaintiff, McMillian, who filed her complaint in the MDL in September 2017, using the standard Amended Short Form Complaint (SFC) then in effect in the MDL.  The SFC incorporated by reference the Amended Master Long Form Complaint and Jury Demand that had been filed in the MDL.

If you are confused or annoyed by this MDL terpsichore, join the club. (The American College of Embittered Defense Hacks?)

The plaintiff’s SFC listed ten counts of liability.  Eight were from the master complaint, and two came from California law.  The defendants filed their master answer (wait a minute – isn’t all this “master” lingo now forbidden?).  Then the MDL plaintiffs filed a Second Amended Master (d’oh!) Complaint, which was identical to the prior master complaint, except for adding two more plaintiffs.  

So far, this is all scene-setting.  Now we get to what the screenwriters call the inciting event.

In October, the MDL plaintiffs sought leave to amend the master complaint again, this time seeking “to no longer define their injury as manifesting six months after chemotherapy” as the prior master complaint alleged.  

We would have denied this request because it deployed a split infinitive.  

The MDL court denied it for a better, substantive reason: “the parties and the Court had been operating under Plaintiffs’ original definition of their alleged injury for years.”  The MDL court conducted an analysis under Fed. R. Civ. P. 15(a)(2) and concluded that the amendment would be “inappropriate at this time” because the amendment “would negate a significant amount of the work that has been done in this MDL. Defendants would undoubtedly want to revise certain expert reports and conduct supplemental depositions, and certain rulings from the Court would be mooted.”

Nicely done.  Did the plaintiffs take this setback with grace and stoicism?  They did not. There followed an “influx” of motions by individual plaintiffs to amend their short form complaints.  The MDL court denied these motions, reasoning that the amendments would prejudice the defendants, who would “need to conduct additional discovery and prepare a different statute of limitations defense.”  The MDL court also issued a Pretrial Order making clear what sorts of amendments were permissible and what sorts were not.  The Pretrial Order also set a deadline for filing such amendments.  The deadline passed, and the plaintiff in McMillian did not file an amendment in the MDL court.

More than two years after the amendment deadline passed, the MDL court remanded Wave 2 cases, including the McMillian case.  The remand order stated that the time for any pleading amendments had long since passed.  

Nonetheless, the McMillian plaintiff sought an amendment in the remand court.  The new complaint included two claims for failure to warn: negligence and strict liability.  But the real problem was that the amendment was totally at variance with the MDL master complaint.  Of course, the “six-month” definition of injury in the MDL complaint that resulted in many statute of limitations dismissals is one of the things the plaintiff sought to change. 

Many Taxotere plaintiffs have tried similar gamesmanship, none have succeeded, and neither did this plaintiff. (We have written before about Taxotere plaintiffs’ attempts to amend the definition of injury so as to escape the statute of limitations.)  The McMillian court observed that the plaintiff had “not pointed to a single case in which a Taxotere plaintiff has been granted leave to amend a complaint in a similar matter after remand from the MDL.”  The plaintiff did direct the court to certain similar motions filed by other plaintiffs, but “neglected to mention in her statement that that one of those motions had already been denied.”  Oops.  And by the time of the McMillian court’s decision, the other, similar motions to amend had also been denied.  Double oops.  Or maybe triple oops. 

The McMillian court believed that what the plaintiff was trying to do was “less a motion to amend the complaint than it is a Motion for the Court to reconsider prior rulings in the MDL.”  Remand courts are not completely without power to revisit MDL rulings, but that is the exception rather than the rule.  Willy-nilly deviations from MDL rulings would offend comity and law of the case considerations, and “would frustrate the purposes of centralized pretrial proceedings.”  More specifically he point here, the McMillian court observed that the MDL court’s rejection of similar amendments “to remove the six-month injury definition, and that Ms. McMillian did not avail herself of the MDL court’s process for amending to allege plaintiff-specific facts (see PTO 105) weighs heavily against the granting of the plaintiff’s present motion.”  

Just like the MDL court, the remand court in McMillian applied Rule 15 regarding amendments (and also Rule 16 as to whether there was “good cause” to amend scheduling orders), and decided that a post-remand amendment “would prejudice defendants, …  undo years of litigation and discovery efforts, necessitate the reopening of discovery, and create further delay.”  

The McMillian court was also displeased with what it perceived as the plaintiff’s “lack of candor” in characterizing the MDL court as putting a “proverbial pin” on the possibility of amendment.  No, the MDL court had “expressly denied, multiple times, attempts by plaintiffs to amend allegations in precisely the way plaintiff seeks here.”  The plaintiff in McMillian was attempting an “end-run around the the MDL court’s rulings.”

The McMillian court did something that we pretty much never saw the Philadelphia Eagles defense do last season: tackled the end-run for a loss.