Last week Bexis posted a link to his comment on draft proposed Federal Rule of Civil Procedure 16.1, which deals with multidistrict litigations (MDLs). If you haven’t read proposed Rule 16.1 and the Bexis comment, you should. MDLs make up an enormous chunk of the federal civil case population and, at least from the defense
Here’s a short one before the holiday (the one we have off, anyway). Most of our readers probably already know about the pending proposal for an MDL-specific rule of civil procedure, enumerated as Fed. R. Civ. P. 16.1. We’ve adverted to proposed Rule 16.1 a couple of times, but never done a deep dive.
This is my first post as a new member of the Drug & Device Law team. Like many of you, I’ve been a consistent reader of the blog for years and I rely on it regularly. I remember talking with Jim Beck and Mark Herrmann many years ago when the blog was just getting started (pretty sure it was 2006). Now here we are. I’m a partner with Butler Snow LLP’s Pharmaceutical, Medical Device and Healthcare practice, and I’ve focused my practice on mass torts for almost my entire career. I’m excited about contributing to the blog and welcome any comments. Now on to business.
MDL discovery is inevitably burdensome on defendants, and the challenges defendants face in attempting to limit the scope of MDL discovery are exponentially more difficult than in single plaintiff cases. Throw a few hundred cases together in an MDL, and courts seem much more willing to view the scope of permissible discovery through a vastly broader lens. So we read with interest decisions that limit discovery, place some of the burden on the plaintiffs, or—even better—implement cost shifting and require the plaintiffs to pay for some or all of what they seek in discovery.Continue Reading Cost Shifting in the Tasigna MDL
It has been almost exactly one year since we brought you Part 2 of this Lone Pine story; so, like the court in its most recent decision, we’ll give you a little refresher. The Zostavax MDL in its fifth year. Plaintiffs allege that defendants’ anti-shingles vaccine caused them various injuries including shingles, hearing loss, and
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
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
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
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
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
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