An anonymous friend of the blog recently passed along an unusual MDL order, along with the question had we ever seen anything like it? The order (copy here) denies an uncontested motion to designate 34 cases as tagalongs in the Aredia/Zometa MDL. As the order reflects, the 34 plaintiffs had sought
Last week we attended ACI’s Annual Drug and Medical Device Litigation Conference. As always, it was nice to be in New York City during the holiday season (though the persistent drizzle was less than festive) and even nicer to see so many friends.
The presentations were quite good and up-to-date. The Mensing discussion was especially
We have offered multiple posts (83 and counting) on Multi-District Litigation. Some of those posts might seem at odds with each other. But as Emerson said, “A foolish consistency is the hobgoblin of small minds.” As Whitman said, “Do I contradict myself? Very well then, I contradict myself. I am vast; I contain multitudes.” And Charles Barkley, after all, once claimed he had been misquoted in his autobiography. The problem with taking any sort of position on MDL procedure is that you never know which side of the issue you might occupy. The theory behind Multi-District Litigation is that consolidation of pretrial proceedings should produce efficiency. Who’s against efficiency? You’d be surprised. (Or maybe you wouldn’t.) If an MDL really resulted in streamlined litigation that is less expensive, without any alteration in substantive rights and outcomes, one would be hard-pressed to squawk. But MDLs can change things in substantive ways. First, creating an MDL inevitably inspires plaintiff lawyers to file boatloads of iffy cases, with the idea of docking them in the MDL for the duration and eventually racking up additional settlements and attorney fees. Second, an MDL puts you in front of a different judge — the transferee judge. That, friends, can make all the difference in the world. In all likelihood, one side will be much happier with the transferee judge, and the other side will pine for remand just to get away from the transferee judge.
This scenario showed up in the recent case of FedEx Ground Package System, Inc. v. United States Judicial Panel on Multidistrict Litigation, No. 11-2438 (7th Cir. Nov. 17, 2011). It’s not a product liability case, but it addresses an interesting wrinkle of MDL procedure. FedEx delivery drivers filed class actions against FedEx, alleging that FedEx had inappropriately treated them as independent contractors rather than employees. The Joint Panel on Multi-District Litigation (the JPML — the defendant in the Seventh Circuit case) sent the cases to a veteran district court judge in South Bend, Indiana. That judge issued a summary judgment in FedEx’s favor, ruling that the drivers were, indeed, independent contractors. That ruling resolved all claims in 22 cases, teeing them up for appeal to the Seventh Circuit. But there were 12 other cases with some surviving claims. What would happen to them? The transferee district judge decided to remand those cases to the transferor districts, which would deal with the other claims. Any appeals, including appeals of the ruling by the transferee judge, would be appealed to the circuit court for that transferor court. That would, of course, open the prospect of inconsistent rulings on the contractor-employee issue.Continue Reading Seventh Circuit Delivers Potential Circuit Split on MDL Procedure
Ediscovery is dreadfully expensive. Plaintiffs are dedicated to keeping it that way, as they know that anything that drives up a defendant’s litigation costs (and mass tort ediscovery falls disproportionately on defendants) increases the settlement value of even meritless cases – and any mass tort has lots of meritless cases.
All too often judges, not
Bexis gave blood last weekend at the Red Cross – not just any old donation, either, but pheresis, a procedure that takes a couple of hours to complete. Because pheresis takes that long, the Red Cross supplies donors with movies to watch. This time it was the 2006 James Bond remake, “Casino Royale,” the type of movie that Bexis waits for the Red Cross rather than actually spends money to see. In “Casino Royale” a delectable baddie poisons 007’s martini with digitalis, nearly causing him to die from a v-fib.
Bexis being Bexis, James Bond’s digitalis overdose got him wondering about whatever happened to the Digitek MDL, which involved an FDA-approved form of digitalis, called Digoxin. We hadn’t posted anything about it in well over a year, since the court blew out some meritless economic loss class actions. Before that, we were impressed by the MDL court’s Rule 11-based order requiring the plaintiffs’ counsel to demonstrate that they’d done a bare minimum of investigation of their clients’ supposed “cases” before filing suit.
Turns out, we didn’t have long to wait. Yesterday, Madeleine McDonough over at Shook Hardy was good enough to tip us off to the ignominious end of that MDL. Yesterday, the MDL court filed three orders (documents 70, 149, and 608) that, frankly, all look pretty much the same to us. They all go under the general description of PTO (that’s “pre-trial order” for you laypeople) 87, so we’re only attaching the one that’s actually called that.
Our first reaction: My God! Has there ever been a more meritless MDL? We thought Bone Screw was bad, since the plaintiffs never in ten years of litigation were able to find a practicing orthopedic surgeon who would opine on defect. But at least in (some of) those cases there were broken screws. In Digitek, the plaintiffs couldn’t even prove exposure to the allegedly defective product! The alleged “defect” was that some Digitek tablets were manufactured bigger than they were supposed to be and thus contain too much of the active ingredient (see James Bond). But it turns out that, after years of litigation, no plaintiff ever proved that a single one of the supposedly defectively too large Digitek tablets was ever sold to any consumer.Continue Reading The Ignominious End Of The Digitek Mass Tort
The goal for the other side in MDL litigation is to file as many complaints as possible and after that do as little work as possible – while waiting around for the almost inevitable settlement, be it large or small. Thus, MDL plaintiffs want only one-way discovery. Their side gets to discover the living daylights
One inescapable fact of life in mass tort litigation is the bellwether trial. In almost every mass tort, at least in federal court, the judge tries to select a representative cross section of the actions that have been filed in order to get a handle on the validity, and thus the value, of the cases
First the Digitek MDL gave us a new weapon – the “Digitek Order” – to ensure plaintiffs’ counsel comply with their Rule 11 obligations to actually investigate their clients’ claims before filing thousands of cases. Novel concept, right? And now we have another helpful opinion – a new decision out of the MDL
When mass tort plaintiffs seek to MDL their litigation, they usually get what they want. See our earlier post on Making Book on the MDL Panel. So it’s noteworthy when the U.S. Judicial Panel on Multidistrict Litigation declines to centralize proceedings. That happened for the second time in the pain pump litigation. In re: