Plaintiffs sometimes treat an MDL like a long layover—stretch their legs, grab a coffee, and assume that once they board the flight back to their home court, the airport rules no longer apply. Surprise! The TSA of civil procedure has a long memory, and your boarding pass still has the MDL stamp on it. Procedural
As defense lawyers, we have dealt many a time with plaintiffs’ attorneys who get away with just about everything. Failing to appear for hearings. Failing to oppose motions. Ignoring court orders. Ignoring discovery requests.
When unjustified, such acts of neglect should not be excused, but they often are. Courts are predisposed to decide cases on
When we ranked Trejo v. Johnson & Johnson, 220 Cal. Rptr. 3d 127 (Cal. App. 2017), as the second best drug or medical device case of 2017, we celebrated the opinion as the first to rule that federal law preempted a design defect claim involving an over-the-counter drug. We did not expect to
This post comes from the non-Butler Snow side of the blog.
The Bair Hugger MDL has an up and down history. First, we lauded the district court’s Rule 702 rulings that led to summary judgment across the board for the defendant. But then the Eighth Circuit reversed. The cases came back to the district court
On the internet, “because reasons” is the default when you don’t have the time or energy to explain why something is correct, but you are sticking with your viewpoint nonetheless.
It is the opposite of what our profession expects from lawyers and the courts: We all are supposed to explain, with crystalline clarity, why our
MDLs are supposed to follow the Federal Rules of Civil Procedure. That’s the reminder the Sixth Circuit gave in In re National Prescription Opiate Litigation, 956 F.3d 838, 844 (6th Cir. 2020):
[T]he law governs an MDL court’s decisions just as it does a court’s decisions in any other case. . . . Here, the relevant law takes the form of the Federal Rules of Civil Procedure. Promulgated pursuant to the Rules Enabling Act, those Rules are binding upon court and parties alike, with fully the force of law. . . . Respectfully, the district court’s mistake was to think it had authority to disregard the Rules’ requirements . . . in favor of enhancing the efficiency of the MDL as a whole. . . . But MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance. For neither §1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely hortatory in MDL ones.
Id. at 844 (citations omitted). More recently the Civil Rules Committee made the same point in approving new Fed. R. Civ. P. 16.1: “The Rules of Civil Procedure, including the pleading rules, continue to apply in all MDL proceedings.” Comment to Rule 16.1(b)(3)(A).
Bad things happen – usually to defendants – when an MDL adopts practices designed to cut procedural corners that the drafters of the rules put there for a reason.Continue Reading MDL Procedural Shortcuts Once Again Disadvantage Defendants
Today’s decision is not from a drug or device case but raises an interesting MDL procedural issue we see from time to time: Plaintiffs trying to jump the queue and avoid the MDL process. In re Paraquat Prods. Liab. Litig., No. 3:23-pq-02887, 2025 U.S. Dist. LEXIS 12392 (S.D. Ill. Jan. 23, 2025).Continue Reading No Jumping the Queue in Paraquat MDL
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
Although Mark Herrmann co-founded the Drug and Device Law Blog (with Bexis) way back in the day, he now writes for Above the Law. Unlike Above the Law, the Drug and Device Law Blog generally does not feature benchslaps—judicial opinions that take a swipe at counsel for their professional misdeeds. Though we may
Just about three months ago, we blogged about Rule 25 dismissals in the Bair Hugger MDL, and today we bring you more of the same from Taxotere. Federal Rule of Civil Procedure 25 provides that “[i]f a party dies . . . the court may order substitution of the proper party.” Rule 25 goes