The unwieldy and generally unfair nature of multidistrict litigation has turn out to be a recurring theme on the DDL Weblog. We have now lengthy commented on the “if you happen to construct it, they are going to come” dynamic that results in tons of or hundreds of instances 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 instances being filed in and transferred to MDLs has created a now-familiar sample: MDLs typically begin by facilitating and permitting the amassing of much more instances, arguably underneath means which are outdoors the Federal Guidelines of Civil Process. Take for instance “direct submitting” procedures, underneath which plaintiffs can file instantly 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 (generally by merely checking bins), 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 truly submitting them, thus avoiding submitting charges in hundreds of instances and doubtlessly permitting these claimants to attend and see. We may 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’ instances and turn out to be much less forgiving. Our defense-side bias leads us to imagine that the purpose of all that is to strain defendants into mass settlements, however we don’t need to choose too harshly. Regardless of the purpose, the foundations kick in sooner or later and the plaintiffs not get a break.
That’s good, however our beef is that it takes far too lengthy. We wrote just a few 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 latest submit reported on a case the place the choose denied the plaintiff’s movement to amend her criticism. That was good and honest 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 tons of of different instances. The plaintiff in Sherratt v. Sanofi US Servs. Inc., No. #:23-cv-00580, 2024 U.S. Dist. LEXIS 33866 (D. Nev. Feb. 28, 2024), needed to take punitive damages discovery after discovery had lengthy been closed. We perceive why. Having failed underneath probably the most fundamental technique—lay low and do as little as doable whereas ready for a gaggle settlement—this remanded plaintiff may 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 normal deserves discovery towards the defendant for the advantage of all MDL plaintiffs. That included discovery into points affecting punitive damages, with out regard as to whether the relevant legislation in a given plaintiff’s case would truly allow the introduction of such proof at trial. Id. at *2-*3. The plaintiff in Sherratt was current for all of this, however in some way 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:
In response to [Defendant], the overall deserves discovery towards 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 . . . staff (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 recognized concerning the alleged damage on this litigation “throughout completely 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 helpful and compelling, and most each defendant in an MDL is ready to roll out equally spectacular numbers. The linchpin, nonetheless, was that normal discovery closed greater than 5 years in the past:
[G]eneral deserves discovery towards [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 information and depositions of the plaintiffs and plaintiff’s well being care suppliers, spouses, buddies, household, and case-specific knowledgeable discovery.
Id. at *4. The plaintiff couldn’t present (and didn’t even actually try to point out) that extraordinary circumstances existed that might justify reopening normal discovery, together with punitive damages discovery. Id. at *5-*6.
You can see this as one case the place a plaintiff failed to satisfy his or her burden to obtain some particular dispensation, however we desire 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 towards 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 really exhibit that they’ve even arguably viable claims.
So once more, the foundations apply, however why did it take so lengthy? That is our frustration with MDLs. We respect judges who promote effectivity and make use of some creativity in managing giant 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 best way (and we are able to consider quite a few examples the place MDL judges have finished simply that). There isn’t any purpose to attend.
