Multidistrict Litigation

CPAP MDL Overinflates Plaintiffs’ Claims

By Bexis on December 4, 2023

Abuse of substantive law as a weapon to force settlement occurs so frequently in multidistrict litigation (“MDL”), that we’ve given it a name – “the MDL treatment.” The linchpin of the MDL treatment is that plaintiffs are allowed to take way more liberties with state law than the Erie doctrine allows. Readers can recall from our prior posts that both the Supreme Court and Third Circuit (to take the relevant example), view expansive federal court “predictions” of state law – and state tort law in particular – usurp the prerogatives of the states and are an abuse of power. Continue Reading CPAP MDL Overinflates Plaintiffs’ Claims

GranuFlo/NaturaLyte MDL Substantive Rulings – Better Late Than Never

By Bexis on October 30, 2023

The Granuflo/Naturalyte MDL (“G/N”) was created a decade ago, in 2013. In re Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation, 935 F. Supp. 2d 1362 (J.P.M.L 2013). Notwithstanding a settlement in 2016, it’s still up and running, it appears. Over the past decade, the G/N MDL had distinguished itself for – not much, really. We wrote a grand total of one post about it during that time, which collected several one-off state-law rulings, but zero preemption, expert admissibility, or core product liability issues decided.

Until a little while ago.Continue Reading GranuFlo/NaturaLyte MDL Substantive Rulings – Better Late Than Never

Of MDLs, Settlements, and Common Benefit Contracts

By Bexis on September 28, 2023

Our immediate reaction to In re Bard IVC Filters Products Liability Litigation, ___ F.4th ___, 2023 WL 5441793 (9th Cir. Aug. 24, 2023) (hereafter, “Jones” (the plaintiff’s name)), was “popcorn time” – pull up a chair and watch the other side fight like drunken pirates over the MDL spoils. But there’s more to Jones than that. The MDL-related “participation agreements” that Jones enforced are something like third-party litigation funding, in that they introduce another party to the settlement mix, even in non-MDL cases. Defendants thus have a need to know about those agreements when settlement is raised in those cases.Continue Reading Of MDLs, Settlements, and Common Benefit Contracts

Taxotere MDL Dismisses Plaintiffs Who Failed to Perfect Service by Deadline

By Stephen McConnell on August 23, 2023

It is time, once again, to talk about Multidistrict Litigation (MDL) case management. But this time there will be more gratitude than grousing.

We wince when we hear judges talk about managing litigation. Such management seems to be about many things (mostly about forcing settlement), and not much about deciding legal issues, and definitely not…

Attempt To Buttress Expert’s Scant Reasoning Rejected On Appeal In Pelvic Mesh Case

By Eric Alexander on August 17, 2023

We have lost track of how many times we have written on pelvic mesh cases as they have gone through a number of district courts on remand and occasionally up on appeal to circuit courts. One theme we have seen play out over and over is that plaintiff lawyers who took on more cases than…

Plaintiffs Get A Break On Service Of Process In The Zostavax MDL

By Steven Boranian on August 15, 2023

We have long lamented the apparent relaxation of the Federal Rules of Civil Procedure in multidistrict litigation, and it happened again recently in the Zostavax MDL. We understand that the purpose of MDLs is to conduct coordinated pretrial proceedings, and we understand an MDL judge’s inclination to take a broader view of case management. But…

In re BHR MDL Identity Crisis

By Michelle Yeary on July 28, 2023

The In re Smith & Nephew Birmingham Hip Resurfacing Hip Implant Products Liability Litigation MDL (“In re BHR MDL”) has disappointed us in the past with its early decisions on preemption, but had rebounded in its summary judgment rulings on individual bellwether cases. Unfortunately, when asked to apply that individual case analysis to a…

Peculiar MDL Procedures Again Disadvantage Defendants

By Bexis on July 10, 2023

This is hardly the first time we’ve complained about MDL procedures – such as direct filing and master complaints – adopted in derogation of the Federal Rules of Civil Procedure, and deployed to the disadvantage of defendants. Today’s decision, Sykes v. Cook Inc., ___ F.4th ___, 2023 WL 4188705 (7th Cir. June 23, 2023), isn’t even the first time that the defendant in this particular IVC MDL lost a dismissal to an MDL procedural peculiarity. See Looper v. Cook Inc., 20 F.4th 387, 391 (7th Cir. 2021) (MDL statute of limitations dismissal reversed because direct filing changed ordinarily applicable choice of law rules).Continue Reading Peculiar MDL Procedures Again Disadvantage Defendants

Taxotere Timing Troubles Persistently Plague Plaintiffs

By Bexis on June 23, 2023

We’ve blogged before about the plaintiffs’ self-defeating “injury” definition in the Taxotere mass tort litigation. Specifically, plaintiffs have defined their injury as being hair loss that persists more than six months after their cessation of treatment with the defendant’s cancer chemotherapy drug. But, because this litigation (like most product liability MDLs) only exists because of lawyer solicitation, such solicitation dredges up many plaintiffs who sat on their hands for much longer than the aforesaid six month period. Having a date certain as to when the injury exists greatly assists any defendant in winning dismissal of these stale claims on statute of limitations grounds.

That’s not just true in the Taxotere MDLContinue Reading Taxotere Timing Troubles Persistently Plague Plaintiffs

Better Late Than Never . . . Unless We Are Talking About Service

By Michelle Yeary on May 9, 2023

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…

Drug & Device Law