Is the question we are asking ourselves after reading Butler v. 3M Company, 2024 WL 5054884 (S.D. Ohio Dec. 9, 2024).  Because if plaintiffs get to amend their complaints post-remand to add whole new claims and allegations, then the MDL process of litigating based on a master complaint doesn’t seem to make a lot of sense, or create the efficiencies attributed to it.

Butler is a case from the Bair Hugger MDL in which plaintiffs alleged that defendants’ patient warming devices purportedly caused joint infections during surgery.  The Master Long Form and Short Form complaints in that MDL have been on file since 2016.  Plaintiffs filing suit after that date, like Ms. Butler, could file a short form complaint providing certain case-specific information, but essentially adopting the allegations of the long form complaint.  Such plaintiffs were also given the right to file amended complaints, “upon the showing required by the relevant Federal Rules of Civil Procedure.”  Id. at *1.  Which became a key issue in Butler—what rule applied to plaintiff seeking to amend her complaint post-remand.

Where a plaintiff moves to amend her complaint before the deadline to do so, Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely give leave when justice so requires.”  But, if the deadline has lapsed, Rule 15’s liberal policy yields to the higher threshold for modifying a scheduling order found in Rule 16.  In this case, the plaintiff must “show good cause” for not seeking leave before the deadline before the court will consider whether the amendment is proper under Rule 15.  Id. at *2. 

Butler was one of 28 cases remanded or transferred from the MDL to their home districts for trial.  The remand court entered a scheduling order setting a deadline for filing motions to amend pleadings.  Plaintiff moved to amend before expiration of that deadline, but long after the pleadings deadline in the MDL—creating a Rule 15 versus Rule 16 conundrum.   Now, if Butler was the only case addressing this issue it may not be a big deal. But the Butler court acknowledged that “several” remand courts were being asked to allow plaintiffs to amend their complaints.  Id. at *3.  Including the MDL court itself in an individual case:

 the MDL court concluded … that “any present motion to amend a complaint in this MDL is governed by Rule 16” and that “[p]laintiffs in the MDL seeking to amend a complaint after July 29, 2016 must proceed under Rule 16 and its good cause standard.”

Id.  Seems hardly open to debate.    

But the Butler court chose to “asum[e] without deciding” that Rule 16 applied and concluded that plaintiff demonstrate good cause based on some suspect reasoning.  Such as, that plaintiff filed her motion to amend before the deadline set by the remand court.  But that’s like saying she met Rule 16’s threshold because Rule 16 doesn’t really apply.  More importantly, the court was persuaded to find good cause because “bellwether trials are designed to, among other things, test different claims and litigation strategies.”  Id. at *4. And plaintiff is “entitled to select which to assert in her own case.”  Id.  No doubt she is.  The same can be said of every plaintiff.  That is the whole point of the short form, case-specific, complaint.  That is the vehicle in which a plaintiff identifies which specific claims she is pursuing.  That plaintiff is entitled to select her claims has nothing to do with whether plaintiff acted diligently in making that selection.  This type of reasoning is an open invitation to any remanded plaintiff to cast off the centralized pleadings of the MDL.  As defendants in Butler argued, amended pleadings at this stage are also likely to re-open discovery, further diminishing the efficiency MDLs are meant to create. That this plaintiff was a late filer in the MDL should have cut against allowing an amendment rather than in favor.  Her counsel had the benefit of all of the proceedings and the discovery in the MDL at the time her complaint was filed and could have added whatever allegations she wanted at the time of filing, or certainly shortly thereafter and in any case, before remand.  She did not. 

Substantively, while the amendment is being allowed, the court ruled it was futile to add claims under Minnesota law where plaintiff is an Ohio resident who was allegedly injured in Ohio.  Id. at *5.  But, other claims, such as Ohio common law claims which are subsumed under the Ohio Products Liability Act, were allowed to be pleaded in the alternative.  Id. at *6.             

Regardless of which amendments were or were not allowed, Butler stands for the proposition that the pleading framework under which an MDL is conducted (and any results of Rule 12 motion practice) can be jettisoned after remand.  So, what’s the point?