When the proposed (soon to be approved) Fed. R. Civ. P. 16.1, concerning MDL practice was finalized last year, we gave it one cheer in our “New Rule 16.1 – Better Than Nothing, But Not by a Lot” blogpost.  We were, and remain, concerned that the provision concerning early vetting of MDL claimants will prove inadequate to address the serious problem created by huge numbers of meritless claims.  But we did point out that the section about exchanging information about the “factual basis” of claims was different from the other items on the rule’s topic list:  it used “how and when,” as opposed to “whether” or “if” – indicating that such early exchanges were viewed as mandatory (in some form).  This, we thought, gave the defense an opening for seeking serious early vetting of MDL claims.

That may already be happening.

A recent order in Depo-Provera MDL is just what defendants had hoped to see along those lines.  Essentially, it’s a Lone Pine order, although that term − which sets off plaintiffs’ counsel – is not used.  The order requires every MDL complaint, whether pre-existing, transferred, or directly filed, to plead:  (1) a “Requisite Physical Injury” from a specified list (no vague language disguising lack of actual injury); and (2) that such injury “resulted from and/or was exacerbated by . . . use of a Requisite Product,” again from a specified list.  The Depo Provera order only imposes pleading requirements.  It has no mandates, like some Lone Pine orders do, for expert submissions.

Nonetheless, the immediate requirement of a specific statement of disease, product identification, and causation is a big chunk of the early vetting that MDLs so desperately need.

And there’s more.  Most MDL enforcement of plaintiffs failing to comply with even basic discovery is an expensive and drawn out process requiring that the defendants spend time and effort to identify and pursue deficiencies while giving plaintiffs months and months to cure those deficiencies.  Not in this Depo Provera order.  The defendants aren’t responsible for plaintiffs’ deficiencies.  BrownGreer, already appointed to the position of MDL “Data Administrator,” is given enforcement authority:

BrownGreer will review Complaints for deficiencies. . . .  Specifically, if BrownGreer identifies a deficiency, it will notify the Plaintiff, who will then have an opportunity to cure by submitting an Amended Complaint to BrownGreer within two business days. . . .  BrownGreer will then review the Complaint again for compliance.  If BrownGreer finds the defect is cured, it will so notify the Plaintiff, who may then file the amended pleading on the individual docket without moving for leave to amend.  BrownGreer will inform the Court of any Plaintiff who has failed to cure the deficiency(cies) identified through this process.  In those instances, the Court will first enter a docket annotation on the individual docket directing the Plaintiff to address the remaining deficiencies by filing an Amended Complaint within seven days.  If an individual Plaintiff does not timely comply, the Court will issue a formal Order to Show Cause to address the deficiency or otherwise demonstrate why sanctions, up to and including dismissal, should not be imposed.

In re Depo-Provera (Depot Medroxyprogesterone Acetate) Products Liability Litigation, 2025 WL 1618995, at *1 (N.D. Fla. May 12, 2025) (emphasis original).

Two days for initial deficiency notice, and seven days for a judicial order to show cause.  That’s blazing fast.  Moreover, deficient complaints (at least going forward) can’t advance without BrownGreer’s blessing.  All of these aspects encourage plaintiffs to “put up or shut up” and to do so quickly.  That’s what early vetting is all about.  Plaintiffs are supposed to have Rule 11 compliant evidence of product use, causation, and injury before they file suit.  The formal process that this order imposes is the first one we’ve seen in a long time that operates sufficiently quickly to enforce Rule 11 in a meaningful fashion.  The Depo-Provera order’s message is blunt − that plaintiffs whose pleadings fail minimum pleading standards of the Federal Rules are going to  be flagged, and failure to address those issues promptly is going to result in prompt dismissal.

The same judge entering this order had the prior misfortune of presiding over a non-drug/device MDL, involving military earplugs, that rapidly spiraled out of control with an avalanche of questionable filings.  That MDL, which reached some 270,000 plaintiffs (over 15% of all cases in the federal system), eventually settled.  Of course, it turned out that in the settlement process, uninjured plaintiffs, product non-users, and duplicate claims abounded.  Apparently, the court is making a determined effort to require effective early vetting this time around.

If the Depo-Provera order becomes a model for MDL practice after Rule 16.1 goes into effect this December, then we’ll happily eat our words and admit that the entire process may be worth it after all.