As a young associate, we worked for a short time with then soon-to-be-Judge Harvey Bartle. We remember that, although kind and very funny, then-lawyer Bartle had a no-nonsense approach to law practice and a keen ability to discern the correct answer, sweeping aside fluff and obstacles en route to what made sense. We were excited when his appointment to the federal bench was announced. A few months later, we even asked Judge Bartle to perform our wedding (we almost said, “asked him to marry us,” but that wasn’t going to come out right) and were disappointed to learn that he would be out of town for the big day.
And so we were pleased, but unsurprised, to observe that Judge Bartle authored the decision on which we report today. We are told that a Westlaw cite will be forthcoming, but you can find the decision and order, respectively, at Documents Nos. 288 and 289 in the Zostavax MDL, In re Zostavax (Zoster Vaccine Live) Products Liability Litigation, E.D. Pa., MDL No. 2848, Civil Action No. 2:18-md-02848-HB. We have linked the documents here and here. We have blogged previously on the Zostavax MDL, and you can read those posts here.
Today’s opinion is a decision on Merck’s motion to dismiss 173 plaintiffs’ claims for fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, violations of state consumer fraud statutes, and on a motion by co-defendant McKesson (a distributor) to dismiss the entire complaint in each of the 173 cases. As he and transferor courts had in four earlier individual cases, Judge Bartle granted Merck’s motion to dismiss the fraud-based claims, including the consumer fraud claims, with prejudice, holding that none had been pled with the particularity required by Fed. R. Civ. P. 9(b), despite several opportunities to amend. Judge Bartle stated. “Each of the 173 complaints is full of boilerplate language unrelated to the individual case and is the antithesis of how a proper federal complaint should be drafted. The one-size-fits-all approach of plaintiffs’ counsel produced allegations that are absurd on their face as to every plaintiff.” Opinion, at 2. These absurdities included allegations that plaintiffs “were induced to obtain a Zostavax vaccination by advertisements that began running years after plaintiffs were inoculated.” Id. at 3. Judge Bartle commented, “Plaintiffs’ counsel has habitually made such improper allegations, and the court has previously granted motions to dismiss nearly identical claims with prejudice,” id., and that, “[d]espite the court’s strong language chastising plaintiffs’ counsel” in those decisions, “counsel [had] continue[d] its vexations behavior.” Id. In light of those earlier decisions, the defendants had asked the plaintiffs’ counsel to dismiss these claims from the 173 cases, but plaintiffs’ counsel refused. The court “reiterated that such behavior can only be designed to waste the time and resources of the court and opposing counsel.
With respect to McKesson’s motion to dismiss the entire complaints in each of the 173 cases, Judge Bartle dismissed the fraud-based claims with prejudice, and the remaining counts without prejudice “on the ground that plaintiffs have failed to satisfy the requirements of Rule 8(a) of the Federal Rules of Civil Procedure,” id, by filing complaints in which the “deficiencies” were “manifest” and that did not contain “a short and plain statement of the claim showing that” the plaintiffs were “entitled to relief.” Id. The court also, sua sponte, dismissed the remaining claims without prejudice as to Merck, to avoid the “unmitigated confusion” that would result if different complaints were pending against the two defendants. Id. at 4. In closing, the court “urge[d]” plaintiffs’ counsel “not to repeat the same behavior here with respect to any future filings” in the MDL. Id. at 4-5.
But that wasn’t Judge Bartle’s final punch. In his separate Pretrial Order (the second of our linked documents), the judge ordered that re-filed amended complaints not exceed 40 pages. He then called out a plaintiffs’ firm by name, ordering that firm never to file another complaint or amended complaint longer than 40 pages and stating that any overlength pleading would be dismissed “without prejudice on [the court’s] own motion.” Pretrial Order No. 172, at 2.
We spend much of our professional life in the largely-unchecked world of MDL “master complaints” that list dozens and dozens of possible claims, and of plaintiffs’ lawyers who “incorporate” every single claim into every single short-form complaint filed on behalf of an individual plaintiff. Facilitating the MDL “cattle call” mentality in which plaintiffs’ firms assemble “inventories” of hundreds or thousands of cases without ever meeting the individual plaintiffs, this regime has never made a bit of sense and has allowed plaintiffs’ complaints to become procedural exercises lacking all significance. It has also permitted cases to remain pending for years and years during which no one – least of all the plaintiffs themselves – have any idea what the “real” claims are, let alone whether any claim has merit. We have lost track of the number of times we have expressed, in these pages, our frustration at the resulting MDL “parking lots.”
So we would love this decision even if it didn’t involve a bit of our professional history. The fact that it evokes decades-old memories of a fresh-faced associate only makes it sweeter. We are sure there is more to come in the Zostavax MDL, and we will keep you posted.