MDLs are complicated. MDLs are chaotic, messy, and ugly unless they have structure and order. Bringing order to chaos. Something this blogger has championed for what’s starting to be more years than she wants to readily discuss. But without order, think of The Blob (the original 1958, Steve McQueen flick). It creeps. It crawls. It eats you alive. Same can be said of MDLs. They have a way of growing at an alarming pace. The number of plaintiffs. The number of defendants. The number of depositions. The number of documents produced. Just oozing out in every direction. Eating up time, money, resources. And, most of the creeping and crawling is directed at defendants. Plaintiffs want to depose dozens of company witnesses (hundreds if you get into sales representatives). Plaintiffs want millions of pages of documents, along with native productions of large databases. And what do the individual plaintiffs have to do? Usually no more than fill out a Short Form Complaint, a Plaintiff Fact Sheet, and sign some medical release authorizations. And while they do that, very little is done to curb the mounting mass of lawsuits.
That is until it’s not just defendants who have to put up or shut up. There is no doubt that requiring individual plaintiffs in an MDL to do something – anything – to justify his/her claim actually works to shrink the mass. In the DDL biz, we call it Lone Pine, named for Lore v. Lone Pine Corp., 1986 WL 637507 (N.J. Sup. Ct. Nov. 18, 1986) in which a New Jersey state court judge ordered plaintiffs to offer proof connecting the defendant’s product to the plaintiff’s alleged injury. We keep track of the entry of Lone Pine orders in our cheat sheet, here. And it should be no surprise that we are strong proponents of the Lone Pine orders, especially when entered early on in litigation. They help clean house; shake off free-riders hoping to hang in until a settlement.
A decision last week from the Abilify MDL shows just how effective Lone Pine can be. In re Abilify (Aripiprazole) Products Liability Litigation, MDL 2734, was created in October 2016. Almost two years later, the court entered an order requiring every plaintiff to complete a Supplemental Plaintiff Profile Form (“PPF”) and supporting documentation by October 31, 2018. That order provided that failure to comply would result in sanctions, “up to and including dismissal of a case.” In re Abilify, MDL 2734, Order, at p.1 (N.D. Fla. Jan. 31, 2019). As of last week, “over 400 plaintiffs” had failed to submit a PPF or submitted an incomplete PPF. Id. at p. 2. So the court issued an order to show cause why these deficient plaintiffs should not be dismissed. Plaintiffs were given one week to respond – and just submitting the PPF and supporting documents isn’t going to be enough. Id.
So, how is this Lone Pine? It’s a matter of substance over form. The court doesn’t call the PPF process Lone Pine, but if you look at what plaintiffs were being asked to do – it’s all there:
Proof of use: Plaintiffs had to state whether they had records documenting use of the product. If so, they had to produce them and if not, they had to explain why not. Why not indeed. No lawsuit should be filed without first obtaining proof of product usage. Production of pharmacy/dispensation records should not be a hardship for any plaintiff 2 years into a litigation.
Proof of injury: Plaintiffs had to state whether they had ever been diagnosed with their alleged injury. If they were diagnosed, they had to produce the records confirming the diagnosis. If they did not have such records, they had to produce a “physician certification attesting that you have been diagnosed with [your alleged injury] and that your symptoms began while on Abilify, and identifying all information and records on which the physician relied.” In re Abilify, Order, MDL 2734, Dkt. 986-1 (N.D. Fla. Aug. 31, 2018). Definitely Lone Pine territory. If you claim you suffered your injury, you have to have proof. Again, we think that’s something plaintiffs should have before they file suit, so it is completely reasonable to ask for it well after that point.
The PPF process is a common one in MDLs, but it has to have teeth and it has to have an enforcer. If a PPF only requires plaintiffs to reiterate their allegations and not back them up with documentation, it really doesn’t do anything to weed out meritless claims. Likewise, the court has to be willing to dismiss plaintiffs who don’t comply. If you don’t do the work, you don’t get your case. The next step is more difficult and one we wish more courts would take – diving into the ooze. For the hundreds of plaintiffs who did complete the PPF, does the documentation support the allegation? This starts to get too close to Daubert and summary judgment for many courts to feel comfortable, but from experience we know complete PPF/Lone Pine submissions are not the same as non-deficient submissions. We also know assessing deficiencies is a lot of work. Not fun work. Not pretty work. But the kind of work that brings order to chaos. Lone Pine may just be to MDLs what a blast of cold air was to the The Blob. It wasn’t dead, but at least it was stopped (“as long as the Arctic stays cold!”).