A multidistrict litigation (MDL) can be a sound way of managing a mass tort. Efficiencies are available (e.g., deposing company witnesses only once) and the U. of Chicago part of us dreams of economies of scale. Then again, an MDL can be vexing, as plaintiff lawyers park their weak cases in the MDL and find ways to push their relatively few strong cases up front. Think of the MDL as a vast kennel, with all of the associated dangers and bad smells. Then again, an MDL can be an out-and-out disaster, as the old If-you-build-it-they-will-come model oft-described by blogger emeritus Mark Herrmann takes hold. The very existence of the MDL itself makes the mass tort massive. The MDL becomes a magnet for the meritless. Plaintiff lawyers resist any discovery of individual cases – there are too many! – and insist on dedicating the MDL to endless discovery of company conduct, as that is common to all cases and, viewed through the MDL lens, is always proportional, no matter how intrusive or expensive. (At least that is the plaintiff argument. But now some courts have finally grown weary of MDLs becoming festivals of discovery about discovery, and decided that proportionality applies even when the MDL case inventory has reached four or five digits. See here, for example.)
We have gone through this evolution of thought in the course of a single MDL, watching good intentions morph into an extortion racket. We have also seen courts gradually catch on to what has gone wrong with the MDL system. Is this an instance of phylogeny recapitulating ontogeny? Legislation has been revived in Congress that aims to cabin the insanity of MDLs and class actions. And, mirabile dictu, some MDL judges have started to rein in asymmetrical discovery and have even demanded that plaintiff lawyers furnish evidence of such niceties as usage of the product and medical causation. We’re not saying let’s make MDLs great again, but can we at least make them less miserable? Or maybe just make them less. Perhaps we don’t need an MDL every time there’s an alarming study or an uptick in adverse events.
And so we come to a recent decision by the Judicial Panel on Multidistrict Litigation (JPML) denying a plaintiffs’ motion for centralization of a drug product liability litigation. In re Proton-Pump Inhibitor Products Liab. Litig., 2017 WL 475581 (JPML Feb. 2, 2017). Various plaintiffs alleged that various proton pump inhibitors manufactured by various defendants caused various kidney injuries, including acute interstitial nephritis, chronic kidney disease, end stage renal disease, and kidney failure. The plaintiffs moving for formation of an MDL had filed six cases. Here is where those six cases were located: Eastern District of California, Middle District of Louisiana, Western District of Louisiana, Western District of Missouri, and Northern District of New York. Those locations were obviously a matter of choice, not chance. The plaintiffs sought to include 15 cases in the MDL, though an additional 24 related cases came to the attention of the JPML. When one proposes an MDL, one also proposes where that MDL should be. Here is where the plaintiffs wanted the MDL to be housed: Middle District of Louisiana, or, in the alternative, District of New Jersey, Southern District of Illinois, Southern District of Ohio, District of Kansas, or Western District of Louisiana. Not to put too fine a point on it, the plaintiffs plumped for places that are usually thought of as pro-plaintiff. Big surprise.
The defendants argued that no MDL was necessary. The defendants had good arguments – so good, in fact, that they prevailed. We will get to those winning arguments in a moment. But the defendants also argued that if they were going to be thrown into the MDL briar patch, that patch should be in the Central District of California or, in the alternative, the District of Delaware. Hold on a minute. Why the Central District of California? Most cases there are tried in Los Angeles, where we were an AUSA in our salad days. L.A. is not typically considered a great place for corporate defendants. (True, true – Orange County or Riverside County might be okay. During voir dire we used to ask folks what magazines they read. After a prospective juror in Riverside replied, “Mostly the church monthly,” we looked over at the poor fellow defending the meth dealer and could not quite stifle a snicker.) The reason the proton pump inhibitor defendants suggested C.D. Cal. is because a judge there had already handled a different sort of proton pump inhibitor MDL, and had done so fairly and efficiently. That C.D. Cal. judge issued a sensible Daubert ruling that (1) streamlined the litigation, and (2) was affirmed by the Ninth Circuit. (Some critics of our favorite Circuit would contend that such a combination is impossible. Ha!) Why Delaware? That was the location of the major defendant. Thus, the defense proposals for location were grounded in principles of efficiency, whereas the plaintiffs’ proposals were grounded in mere preference. If you have some spare moments for high comedy, you should read the plaintiffs’ arguments for why Lafayette, Louisiana is such a convenient place for everyone.
The JPML felt no need to engage in any sort of travelogue, because it concluded that no MDL was necessary or appropriate for this litigation. Here is why:
- The defendants not only vary, they actually compete. Centralization would not be convenient for most defendants, and issues of trade secrets would undoubtedly muddle things.
- Discovery would be defendant-specific. The different defendants sold different medicine, some of which required a prescription and some of which were sold over the counter.
- To make things more complicated, the FDA imposed different labelling requirements re kidney issues for the prescription and OTC medicine.
- The difference in kidney injuries alleged, combined with the difference in the drugs, “significantly undermines any efficiency gains to be achieved from centralization.”
- The existence of just 15 cases with 24 tag-alongs did not cry out for an MDL. To be sure, the plaintiff lawyers threatened to file hundreds, if not thousands, of similar cases, but the JPML was not impressed. Indeed, the JPML seemed more than a little skeptical, observing that proton pump inhibitors came onto the “market more than two decades ago and the drugs have been taken by millions of Americans.”
An MDL can be more trouble than it is worth, and the judges on the JPML are smart enough to figure that out if you give them the opportunity.