Back when we were first getting into the drug and device practice, a senior partner we know and trust told us that the JPML was “in the MDL business.” What did he mean by that? Well, that unique panel of federal judges never saw an MDL motion it did not like, making it a near certainty that if you found yourself before the JPML, your next step was likely to be multidistrict litigation in some forum of the Panel’s choosing.
The JPML still grants the vast majority of the MDL motions that it hears, but multidistrict litigation is not the foregone conclusion that it once was. We think that is partly due to plaintiffs’ attorneys who overreach by filing consolidation motions that stretch the JPML’s limits. Take for example the JPML’s rejection of multidistrict litigation in cases involving Cymbalta, where the JPML found that the few cases at issue were at varied stages of litigation and that multidistrict litigation would offer little benefit. It is telling that the plaintiffs’ attorneys pushing Cymbalta cases tried not once, but twice to persuade the JPML to create an MDL. The cases had little to no arguable merit, so perhaps they needed an artificially created “mass” proceeding to attract more cases. They failed, and when we looked at one of their websites a few minutes ago, it said they were “no longer taking these cases.” Go figure.
That brings us to an order that the JPML entered a couple of weeks ago denying an MDL motion in cases alleging off-label promotion of amiodarone, a heart rhythm medicine. In re Cordarone (Amiodarone Hydrochloride) Marketing, Sales Practices, and Prods. Liab. Litig., MDL No. 2706, 2016 U.S. Dist. LEXIS 71769 (J.P.M.L. June 2, 2016). Amiodarone is an old drug, used outside the U.S. for decades and approved in the U.S. in 1985. Multiple generic manufacturers have distributed it since the late 1990s. Amiodarone has several known risks, which are described in its exceptionally strong labeling and in a Medication Guide that accompanies prescriptions. The FDA published a Drug Safety Communication last year about adverse events reported when amiodarone was prescribed with certain antivirals. That may have piqued the interest of plaintiffs’ lawyers, but we don’t really know. Whatever the motivation for pursuing the cases, there are not that many, which may itself be the motivation for seeking an MDL, i.e., to drum up more cases (see, e.g., Cymbalta).
The JPML, however, is not playing along. First, the panel noted that the nine actions at issue involved products made and sold by multiple generic drug manufacturers, and the named defendants varied widely among the cases. Cases with multiple, different defendants do not lend themselves to coordination in multidistrict litigation. As the JPML observed, “Given the different defendants sued in these actions, centralization appears unlikely to serve the convenience of a substantial number of parties and their witnesses. [¶] The variance in named defendants virtually ensures that a significant amount of the discovery will be defendant-specific, as do plaintiffs’ allegations themselves.” Id. at **3-4. By our recollection, different products and different defendants is as common a reason as any for denying MDL consolidation, and the JPML reasoned no differently when it came to the multiple parties making and selling amiodarone.
Second, the Panel noted that the plaintiffs alleged that they (or their decedents) did not receive the FDA-required Medication Guide with their prescriptions. This is an issue that is unique to every plaintiff and that will require plaintiff-specific discovery in every case. Or, as the JPML put it, “The very nature of these allegations appears to mandate a unique inquiry, given that the subject drug was manufactured by one of several of the Generic Defendants and dispensed at different times and at different locations.” Id. at *4. Because of these individualized inquiries, “centralization would not achieve significant efficiencies.” Id. It is impossible not to see the logic in this, but we note that individualized inquiries exist in every product liability case—for example causation, the impact of warnings, reliance on representations, scientific knowledge when the product left the defendant’s control, etc. Regardless, the JPML usually finds common issues sufficient to make multidistrict litigation worthwhile anyway. Not here.
Finally, the JPML noted that the “limited number of involved counsel further weighs against centralization.” Id. at *5. There were just two plaintiffs’ firms, which should make coordination workable without formal consolidation in a transferee district. We can’t say we have seen this reasoning before, although we admittedly have not undertaken any systematic survey. It does make us think that the JPML is not about consolidation for the sake of consolidation. If there is another way to achieve efficient proceedings, then so be it. In the end, the JPML’s principal reason for denying consolidation was that the actions were just too different: “Especially given the significant differences among these actions we conclude that such cooperation and coordination are preferable to the creation of an MDL.” Id. at 4.
Maybe the plaintiffs’ lawyers will try again in a few months, or maybe next year, or maybe not at all. If, however, they intend to grow their inventories, they will have to do so in the near terms without an MDL.