This post is from the non-Reed Smith side of the blog.
Today would not be the first time that we complained about current MDL processes and the need for changes that embrace early and rigorous vetting of plaintiffs’ claims. There is no dispute that MDLs contain an abundance of meritless claims and, therefore there should
Some things make sense only in the topsy-turvy, litigate-everything-to-death world of multidistrict litigation. One recent example is In re Taxotere (Docetaxel) Products Liability Litigation, 2023 WL 2982464 (E.D. La. March 8, 2023), where MDL-related considerations led a defendant to oppose a plaintiff’s motion for voluntary dismissal with prejudice.
Why? Think chess. In MDLs the other side treats plaintiffs like pawns, regularly sacrificing them in the hope of putting one or more defendants in zugzwang (a chess term for forcing an adverse move). That’s what happened in Taxotere.
Stop us if you have heard us say “stop us if you have heard this before.” Pelvic mesh cases on remand have often faced the harsh realities of procedural requirements and burdens of proof because transferee judges have treated them like individual cases rather than items in an inventory. Decisions about the impact of failure
Duh. We apologize for the depth of our profundity, but there are some legal principles we think are really obvious. So obvious, in fact, that we might respond to question about these principles with this most dismissive of (clean) interjections. (We were somewhat surprised to learn from the interwebs that duh was supposedly first used
What follows is from the non-Dechert side of the blog.
The history of the Zantac MDL has been one novel claim after another from the plaintiffs’ side. Fortunately, the vast majority of those ideas have gotten nowhere. That’s what most recently happened in In re Zantac (Ranitidine) Products Liability Litigation, ___ F.R.D. ___, 2023 WL 1797264 (S.D. Fla. Feb. 7, 2023). The plaintiffs filed something entitled “Expedited Motion to Permit Multi-Plaintiff Complaints for Registry Claimants.” This was the plaintiffs’ attempt to avoid paying filing fees for around 58,000 “registry claimants” − who are now obligated to make up their minds and file their complaints – or forever hold their peace.
Stop us if you have heard this before. One of the big problems with MDLs in the era of unchecked lawyer advertising, litigation funding, and the focus of MDL judges on mass settlement is that a high percentage of plaintiffs never have to do any heavy lifting between filing their cases and participating in some
We have not been terribly shy in voicing our concerns over certain practices we see in drug and device MDLs. Some of these concerns are directed to plaintiff lawyers, some to the judges overseeing the MDLs, and some to both. For instance, we think many MDL judges are far too lenient in allowing plaintiffs
We know that the Federal Judicial Conference’s Committee on Civil Rules is considering creating a rule specifically applicable to multi-district litigation – which now comprises some 70% of all cases filed in the federal court system. We remain hopeful the new rule will forcefully encourage the early vetting of MDL plaintiffs’ bona fides, since most MDLs ignore the existing rules that require pre-complaint investigation of claims.
The recent decision in In re Proton-Pump Inhibitor Products Liability Litigation, 2022 WL 17850260 (D.N.J. Dec. 12, 2022), provides the latest graphic example that early vetting simply isn’t happening, now, in MDLs.
Continue Reading Another Poster Child for Early Vetting of MDL Plaintiffs
One of the decisions we were looking forward to at the end of 2022 has occurred. In In re Zofran (Ondansetron) Products Liability Litigation, ___ F.4th ___, 2023 WL 128570 (1st Cir. Jan. 9, 2023), the court unanimously affirmed the MDL-wide preemption order dismissing all claims. Since the history of the Zofran litigation is well covered in our prior posts, we’ll stick to the First Circuit’s preemption rationale here.
Bexis recently returned from speaking at the 2022 National Vaccine Law Conference. As a veteran of both the DTP and thimerosal vaccine litigations, he was generally interested in vaccine-related product liability issues, so he stayed for the entire conference. He was most interested in learning more about the compensation systems provided by the National Childhood Vaccine Injury Act and the PREP Act. The Vaccine Act, 42 U.S.C. §300aa-10 et seq., seemed most relevant, since the layers of preemption imposed by the PREP Act make product liability litigation over use of PREP Act “covered countermeasures” (which include vaccines) extremely unlikely.