Multidistrict Litigation

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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

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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.

Continue Reading MDL-Wide Preemption Win in Zofran Affirmed

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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.

Continue Reading Thoughts on a Vaccine Act MDL

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Today’s post is for procedure geeks, especially those who litigate MDLs.

Offensive non-mutual collateral estoppel prevents a defendant from relitigating an issue that it lost in earlier litigation against a different plaintiff.

The issue is when offensive non-mutual collateral estoppel applies to a case that was part of an MDL. More specifically, the issue is

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One of the problems with so-called Lone Pine orders in MDLs is timing – they are usually entered way too late, more as vehicles to enforce settlements than as any genuine effort to weed out the large number of bogus cases that everyone, including plaintiffs, admits are present in MDLs.

We can’t say that the

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MDL defendants in prescription medical product liability MDLs have been complaining for years about thousands of cases being brought without the slightest pre-filing vetting – “plaintiffs” who cannot establish that they ever actually used the products of the defendant(s) they have sued and/or who similarly have no proof that they suffered the injury(ies) as to