In early Summer we will be attending yet another bench and bar conference on Multidistrict Litigations.  The organizer of the conference recently asked us to switch from a panel focusing on MDL problems to a panel discussing potential solutions.  Of course, we agreed, because we’re all about being cooperative and constructive. Right?  Not really. Grousing is easier than fixing.  That’s especially true on this topic.  Any reader of this blog has been subjected to our incessant criticism of MDLs – the warehousing of meritless cases, the asymmetrical discovery, and the grinding settlement machinery.  When we scan the MDL landscape, we see a lot more dysfunction than efficiency. 

But every once in a while, we see an MDL court take charge, get things right, and commence the crucial process of separating the wheat from the chaff.  There is almost always way more chaff than wheat. 

We wish the decision in In re Paraquat Products Liability Litigation, 2024 U.S. Dist. LEXIS 57124 (S.D. Illinois Feb. 26, 2024), involved prescription drugs or medical devices, but it’ll do. Plaintiffs claimed injuries from exposure to Paraquat.  The court early on entered a case management order (CMO) relating to “Deceased Plaintiffs’ Submissions and Cases Based on Implausible Theories of Proof.”  The MDL court tells us that the CMO reflected the court’s concern “about the presence of cases on its docket that present implausible or far-fetched theories of liability, and therefore would not have been filed but for the availability of this multidistrict litigation.”  

How nice to have a court that actually recognizes the if-you-build-it-they-will-come problem with MDLs, and actually is bothered by it.  The court identified four categories of implausibility: (1) no information concerning their exposure to the product in question, (2) no medical evidence to support a diagnosis of the relevant injury, (3) claims “to have used [the product] in a form in which it never existed,” and (4) “other evidentiary issues.”   

To rid the docket of garbage cases, the court entered an order requiring 25 plaintiffs to produce follow up discovery to show exposure to Paraquat.  What was the result?  Nine of the 25 plaintiffs selected for discovery ended up dismissing their cases.  That is a dropout rate just shy of 40%, which is the percentage of frivolous cases in most MDLs we have labored in, at least by our (skeptical) lights. Those dismissals “only reinforced the Court’s concern about the proliferation of non-meritorious claims on the docket of this MDL.” 

Indeed.  

The court then asked a Special Master to take a closer look at the inventory to look for evidence of Paraquat exposure. It turns out that there was precious little of such evidence.  The court then rather charitably allowed that this “may be because such proof  does not exist, or it may instead be because the relevant documentary evidence is in the possession, custody, or control of a third party.”  Would you care to guess how we’re placing our bet?

The MDL court decided to get down to real business. It ordered each plaintiff in the MDL to produce documentary exposure and dosage information, and to subpoena third parties if necessary. Put up or shut up.  

That is a great MDL order.  Is there any hope of squeezing something like that in proposed Fed. R. Civ. P. 16.1?  One can dream. 

We do not think that the Paraquat MDL is an aberration in terms of the high percentage of meritless cases. But it is an aberration in terms of having a Judge who very quickly got very serious about forcing plaintiffs to show they had actual cases, and that they weren’t merely parking lawsuits with the hope of extracting settlement dollars after doing no work and having no valid claims.  

We intend to discuss the Paraquat MDL at the bench and bar conference.  It shows that the defense-side’s persistent grousing about junk inventories is valid.  But, even better, it shows how early vetting and putting plaintiffs to their proofs can lighten the docket considerably.