The unwieldy and typically unfair nature of multidistrict litigation has change into a recurring theme on the DDL Weblog. We’ve got lengthy commented on the “in case you construct it, they may come” dynamic that results in a whole lot or hundreds of circumstances gathered, filed, after which parked in an MDL—all hoping to do as little work as doable whereas ready for a worldwide settlement. The lots of circumstances being filed in and transferred to MDLs has created a now-familiar sample: MDLs usually begin by facilitating and permitting the amassing of much more circumstances, arguably underneath means which might be exterior the Federal Guidelines of Civil Process. Take for instance “direct submitting” procedures, underneath which plaintiffs can file straight in an MDL transferee district with out regard to venue guidelines or private jurisdiction. Or how about “grasp complaints” that present an umbrella for hundreds of plaintiffs to file their claims (typically by merely checking packing containers), with none real alternative to check the premise for any plaintiff’s declare. Some MDLs have even allowed plaintiffs to lodge their claims with out really submitting them, thus avoiding submitting charges in hundreds of circumstances and doubtlessly permitting these claimants to attend and see. We might go on (and Bexis has, right here).
In some unspecified time in the future although, judges say sufficient is sufficient and begin drilling down on the plaintiffs’ circumstances and change into much less forgiving. Our defense-side bias leads us to imagine that the purpose of all that is to stress defendants into mass settlements, however we don’t need to choose too harshly. Regardless of the cause, the principles kick in sooner or later and the plaintiffs now not get a break.
That’s good, however our beef is that it takes far too lengthy. We wrote a couple of weeks in the past a couple of good Lone Pine order entered within the Taxotere MDL—however solely after 4 years of urging by the defendants. One other current publish reported on a case the place the choose denied the plaintiff’s movement to amend her criticism. That was good and truthful too—however the plaintiff made her movement six years after submitting her criticism.
The latest instance is one other Taxotere case, one remanded from the MDL together with a whole lot of different circumstances. The plaintiff in Sherratt v. Sanofi US Servs. Inc., No. #:23-cv-00580, 2024 U.S. Dist. LEXIS 33866 (D. Nev. Feb. 28, 2024), wished to take punitive damages discovery after discovery had lengthy been closed. We perceive why. Having failed underneath essentially the most fundamental technique—lay low and do as little as doable whereas ready for a bunch settlement—this remanded plaintiff might now not disguise within the weeds. So what higher approach is there to coerce the defendant into paying extra in a person settlement than reopening discovery into “punitive damages.”
The district court docket on remand stated no. The MDL choose had allowed the MDL plaintiffs to conduct intensive basic deserves discovery in opposition to the defendant for the advantage of all MDL plaintiffs. That included discovery into points affecting punitive damages, with out regard as to if the relevant regulation in a given plaintiff’s case would really allow the introduction of such proof at trial. Id. at *2-*3. The plaintiff in Sherratt was current for all of this, however by some means they claimed that it was not sufficient.
The remand choose shut that down fairly rapidly, first as a result of the MDL plaintiffs already took a boatload of discovery:
Based on [Defendant], the overall deserves discovery in opposition to it remained open for 16 months within the MDL and included: “(1) the manufacturing of greater than 576,100 paperwork (or 6,320,000 pages) from 43 separate custodians, (2) depositions of 28 present and former . . . workers (together with . . . 30(b)(6) witnesses), and (3) responses to greater than 160 written discovery requests.” . . . [T]he discovery effort targeted on what [Defendant] knew or ought to have identified in regards to the alleged damage on this litigation “throughout totally different useful areas inside the firm, together with pharmacovigilance, medical, security, regulatory, labeling, advertising and marketing and gross sales, amongst others.”
Id. at *3-*4. This description is beneficial and compelling, and most each defendant in an MDL is ready to roll out equally spectacular numbers. The linchpin, nevertheless, was that basic discovery closed greater than 5 years in the past:
[G]eneral deserves discovery in opposition to [Defendant] (which included punitive damages discovery) closed on December 15, 2018. Any remaining discovery was to be “case particular,” which was described as the gathering of data and depositions of the plaintiffs and plaintiff’s well being care suppliers, spouses, associates, household, and case-specific professional discovery.
Id. at *4. The plaintiff couldn’t present (and didn’t even actually try to indicate) that extraordinary circumstances existed that will justify reopening basic discovery, together with punitive damages discovery. Id. at *5-*6.
You may see this as one case the place a plaintiff failed to fulfill his or her burden to obtain some particular dispensation, however we choose to see this as half of a bigger narrative. There are guidelines, and guidelines apply—simply not as quickly or as constantly as they need to. The plaintiff right here was not allowed to take additional discovery in opposition to the Defendant; one of many plaintiffs talked about above was not allowed to amend her criticism; and an entire bunch of plaintiffs within the Taxotere MDL now must adjust to a Lone Pine order and truly show that they’ve even arguably viable claims.
So once more, the principles apply, however why did it take so lengthy? That is our frustration with MDLs. We admire judges who promote effectivity and make use of some creativity in managing massive caseloads. However we proceed to imagine that MDL judges can accomplish all that whereas predictably making use of the common guidelines of the street alongside the way in which (and we will consider quite a few examples the place MDL judges have carried out simply that). There isn’t any cause to attend.
