Last week we alluded to the utility of bench-bar conferences. As if to prove that point, we spent Thursday and Friday at a conference on Multidistrict Litigations. The conference was focused on the sources of, and possible solutions to, “protracted” MDL proceedings. John Rabiej put the conference together, and that pretty much guarantees that the conference would be productive and constructive. Rabiej has a track record of helping the judiciary improve rules and procedures. Sometimes he says or does things that please the plaintiff side, and sometimes he manages to hearten the defense side. That both-sides-ness does not guarantee that Rabiej is always right (that would require a full-on embrace of defense-hack predilections, of course) but it does guarantee that he is that rare thing: an honest broker.
The conference was attended by many judges and magistrates and special masters who have played roles in important MDLs. There were also plaintiff attorney luminaries, who occasionally astounded and confounded us with their reasonableness. And then there was robust attendance by solons and worldly philosophers who expend sweat and gray cells on behalf of corporate defendants. The conference was governed by the Chatham Rule, which forbids attributing comments to anyone in particular. Accordingly, we will speak in generalities.
Naturally, the plaintiff lawyers blamed any protraction of proceedings on defendants. Plaintiffs want to go fast, including getting trial dates early-on, while defendants want to slow things down to a crawl. Or so the story goes. And yet it is the defense side that usually wants to expedite discovery of particular plaintiffs, it is the defense side that usually seeks prompt exploration of the preemption defense, and it is the defense side that frequently moves general causation ahead in the queue. On that last point, some plaintiff lawyers offered the trenchant observation that early resolution of general causation shortens proceedings only if the defense wins. True enough. And sometimes that happens. You needn’t look very hard to find a relatively recent example of an MDL court dramatically reducing its docket by issuing a brave and brilliant Rule 702 decision eviscerating general causation. Granted, the result may have been more a redistribution than reduction of junk cases, as some canny plaintiff lawyers moved cases to state courts with more, er, relaxed views on epidemiology. And granted, general causation should not always go up front. Defense lawyers need to do something they are not always good at: pick their fights carefully.
At least one defense lawyer had the temerity to voice some discomfort with the transmogrification of MDLs into vast settlement machines. Predictably, plaintiff lawyers wondered why settlement shouldn’t happen nanoseconds after the JPML centralizes the litigation. Sadly, some judges bought into the settlement paradigm. Why wouldn’t parties want to discuss settlement at the MDL stage? Sigh. Here we go. Discussion might be fine, except (1) it’s hard to discuss resolving cases when there are real doubts about the merits of a big chunk of the inventory; and (2) some judges seem to make everything else in the MDL subservient to the settlement dynamic. Some MDL rulings — or, perhaps more commonly, failures to rule on motions — appear designed to incentivize settlements, the law be damned. Nobody said this last part out loud. It’s nice to be around judges, but not so nice if they get mad at you.
Defense hacks would be required to turn in their defense hack cards if they failed to harp on point 1 above, the large percentage of frail cases in the MDL Field of Dreams. (Terms such as “meritless” and “frivolous” were tossed around, with fine distinctions. Fair point. Maybe a case ends up being “meritless,” but it might have been filed legitimately. “Frivolous” from the start is something else entirely.) We sensed some skepticism from some quarters on this point. Where is the data? Well, there is data, and there are plenty of cases (see, e.g., Taxotere and Paraquat) in which large percentages of cases turned out to lack evidence of product usage or injury.
Beyond the threshold skepticism, one judge said that MDLs were not designed to weed out frivolous cases. Read section 1407 all you want, and you’ll find nothing about dismissing cases on the merits. That is correct. But there is also nothing in section 1407 regarding bellwether trials or settlements either. There seems to be some selectivity as to the proper evolution of the MDL process.
We were given the last slot on the last panel. We worried that our grouchy muttering would be drowned out by the sound of exiting rollaboards. We worried even more that we would manage to be even more annoying than usual, since our topic was Federal Rule of Civil Procedure 11. It seemed a less than jolly way to end a conference by talking about Rule 11. Rule 11 tends to end conversations, and not in a good way. Hinting at application of Rule 11 offends plaintiff lawyers – it very strongly says they did something very wrong.
In truth, we are rarely tempted to go the Rule 11 route. It raises temperatures and poisons wells. Moreover, many plaintiff lawyers do a good job of vetting their cases. Then again, that fact highlights the offenders, who pile up junk inventories. Those offenders look all the worse, and the comparative good hygiene of their plaintiff colleagues suggests that some degree of case vetting really is possible.
The first difficult conversation we defense hacks have regarding Rule 11 is usually with our clients. It does not take long to see that many of the cases filed against our clients are sloppy. We see shotgun pleadings in which the boxes for all defendants are checked. Clearly, some plaintiff firms are essentially slobs when it comes to the intake process. They operate conveyor belts with zero quality control. The result is that our clients get tagged with massive case filings unconnected to reality. Those high numbers have a huge impact in terms of case management, expense, and public perception. Our clients ask us whether Rule 11 applies to MDLs. The answer is that it does apply in theory, but in reality — well, good luck. (But see this sterling example in which Rule 11 was applied in a MDL.)
As if to ride in to the rescue comes new Federal Rule of Civil Procedure16.1. If approved, it will go into effect at the end of 2025. There has been much analysis of Rule 16.1, including on this blog. Reviews have been mixed. Perhaps the new rule could have been more firm on case vetting and less merely hortatory. But the new rule and comment make clear that Rule 11 applies to MDLs. You might say (as some at the conference said), So what? Rule 11 was always applicable to MDLs. Okay, but sometimes a reminder helps. After all, recent amendments to Fed. R. Civ. P. 26 and Fed. R. Evid. 702 did not so much rework those rules as remind courts and litigants of how they were always supposed to work, but somehow the thread got lost along the way. As feckless politicians are wont to say, mistakes were made.
We hope that Rule 16.1’s reminder about Rule 11 will inspire MDL Courts to remind parties of their Rule 11 obligations. And then, one fine day, when a plaintiff firm really goes beyond the pale with frivolous, shotgun filings, an MDL court will impose monetary sanctions. We predict that one such sanction will have a beneficent effect in cleaning up the filings, both in that and other MDLs.
One can dream.
As Disney said, if you can dream it, you can do it. But that dream will be dashed if courts insist upon neutering Rule 11 in MDLs. Remember that Rule 11(b) provides that an attorney/party “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.” Then Rule11(b)(3) goes on to say that such certification includes that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” The word “reasonable” is doing a lot of work in those two places. We have nothing against a rule of reason, but we fret that some MDL court somewhere will say that what is “reasonable” “under the circumstances” of a MDL is very different from a one-off case. You won’t be surprised to hear that this blog disagrees. If plaintiff lawyers say they cannot conduct adequate prefiling factual investigations because they have thousands of cases, then our response is as simple as it is predictable: then don’t file thousands of cases.
Stay tuned to see how this issue plays out in future MDLs.
Meanwhile Rabiej continues to fight the good fight. He will suggest several best practices in MDLs. Those best practices would invite everyone to improve their game. We think the defense side is up to the task. We hope the plaintiff side is as well.