“Eventually, all things merge into one, and a river runs through it. The river was cut by the world’s great flood and runs over rocks from the basement of time. On some of the rocks are timeless raindrops. Under the rocks are the words, and some of the words are theirs. I am haunted by waters.” Norman Maclean, “A River Runs Through It.”
Last weekend, we stood on the banks of the Flathead River, just outside of Glacier National Park. We retreat to Montana, every now and then, when we need to restore our soul. This we have in common with Maclean, for this is where he wrote his novel about fly-fishing and life, to the extent that there is a distinction between the two. As we stood under the aptly-named “big sky,” with the river at our feet and the mountains in the distance, we felt tucked into our proper berth in the cosmos and all of the proportions felt right.
In the very short decision about which we report today, a group of plaintiff lawyers needed the J.P.M.L.’s smackdown to be relegated to their proper place in the jurisprudential universe. In In re Linear Gadolinium-Based Contrast Agents Prods. Liab. Litig., 2018 WL 4905435 (J.P.M.L. Oct. 10, 2018), plaintiffs in seventeen gadolinium cases moved to centralize the suits in a new MDL. This would be the second MDL go-round for gadolinium. You can read some of our posts about the first MDL here.
Gadolinium is a contrast agent. Plaintiffs allege that it causes injury when it is retained in the body after it is used for radiological testing. This time around, the plaintiffs argued that their suits should be centralized either in the Northern District of California or in the District of Massachusetts. The defendants argued that the cases should not be consolidated, or, in the alternative, that the J.P.M.L. should stay its decision until general causation discovery was completed in actions pending in the District of Arizona.
The J.P.M.L. concluded that “centralization would not serve the convenience of the parties or further the just and efficient conduct of [the] litigation.” Gadolinium, 2018 WL 4905435 at *1. First, the Panel held that the plaintiffs had “failed to demonstrate that any common questions of fact and law [were] sufficiently complex or numerous to justify centralization.” Id. This was because several different product formulations, from different manufacturers, were involved, and the injuries “appear[ed] to be highly plaintiff-specific. . . .” Id. In addition, because most plaintiffs were represented by a single law firm or by other firms working with that firm, centralization was unnecessary. As the Panel stated, “Given the significant overlap of plaintiffs’ counsel, alternatives to transfer exist that may minimize [the] possibilities . . . of duplicative discovery and/or inconsistent pretrial rulings.” Id. at *2. And then came the music to the ears of all of us who spend our professional lives watching plaintiffs abuse the MDL framework: “. . . [C]entralization under Section 1407 should be the last solution after review of all other options.” Id. (citations omitted). Bexis tells us that this seems to be the first time the Panel has issued this admonition in the context of prescription medical product liability litigation. We hope it’s not the last, and we’ll keep you posted.
In the meantime, thumb through “A River Runs Through It.” It’s magic. We promise.