When the proposed (soon to be approved) Fed. R. Civ. P. 16.1, concerning MDL practice was finalized last year, we gave it one cheer in our “New Rule 16.1 – Better Than Nothing, But Not by a Lot” blogpost.  We were, and remain, concerned that the provision concerning early vetting of MDL claimants will prove inadequate to address the serious problem created by huge numbers of meritless claims.  But we did point out that the section about exchanging information about the “factual basis” of claims was different from the other items on the rule’s topic list:  it used “how and when,” as opposed to “whether” or “if” – indicating that such early exchanges were viewed as mandatory (in some form).  This, we thought, gave the defense an opening for seeking serious early vetting of MDL claims.

That may already be happening.

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.

Taking pot shots at “Big Pharma” is easy.  Crack a joke about Big Pharma and you are sure to get a laugh.  Amirite? 

That is not to say there is never a fair point or two to be made about pharmaceutical development or marketing, or health care and the delivery of same in this country. …

We blogged a lot about the Taxotere MDL.  From Lone Pine orders to denials of motions to amend in remand cases, we reported on some pretty good decisions.  The MDL court also dismissed a number of plaintiffs who failed to make timely service on the defendants, which we blogged about here and here. Today’s decision addresses a plaintiff who appealed her dismissal for failing to make timely service. Reeder v. Hospira, Inc. (In re Taxotere Docetaxel Prods. Liab. Litig.), 2025 U.S. App. LEXIS 4735 (5th Cir. Mar. 6, 2025).

We’ve written many blogposts kvetching about rulings in the Bair Hugger Multidistrict Litigation (MDL) out in Minneapolis.  See here, for example. The rulings on expert admissibility in the Bair Hugger MDL were particularly weak.  But surely the rulings would be much better in our home district of the Eastern District of Pennsylvania, right? And…

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).

This time of year, many of us are focused on the NFL playoffs.  For someone who watches the Super Bowl for the commercials or the halftime show, which team wins may not matter much.  For those devoted to a particular team, however, there is one possible result that will be truly satisfying.  The reality is…