Today, procedures in multidistrict litigation (MDL) cases are largely subject to the individual discretion and experience of the assigned judge, rather than rules, which leads to inconsistencies across MDLs. In many MDL cases, there is no pretrial testing of claims, as the existing mechanism to do so in the Federal Rules for Civil Procedure (FRCP) is not always practical in MDLs, which can have hundreds or even thousands of cases. 

 

However, in the Phenylpropanolamine Product Liability (PPA) MDL, which involved multiple defendant companies, the judge used case management orders (CMOs), agreed to by the parties, to institute an ongoing process to screen claims early in the process using a Plaintiff Fact Sheet (PFS).  Any claims that were not supported by the basic information required by the court were dismissed.  One company’s outside counsel told ‘The American Lawyer’ in January 2006 that the “vast majority” of his client’s PPA cases were dismissed, either by the plaintiffs lawyers who decided not to put money into the litigation, or by the judge who dismissed hundreds of cases on procedural grounds where plaintiffs either did not or refused to complete the PFS in a timely manner.

 

PPA cases consolidated into an MDL in 2001

​

On August 28, 2001, the Judicial Panel on Multidistrict Litigation (JPML) ruled that cases in several federal district courts across the country alleging injury from the use of the decongestants and weight-control products that contained PPA, should be transferred to the Western District of Washington and Judge Barbara Jacobs for pretrial consolidation and coordination. Fourteen actions were pending at the time of transfer.  

 

From 2001-2007, the number of PPA cases grew, but early discovery led to settlement, dismissal or remand of many cases. 

 

On January 29, 2002, the parties to the litigation agreed to the first of a series of CMOs, which set out the basic procedures and a master framework for discovery.  This order stated that “[a] party’s failure to either produce a relevant document or identify same as withheld pursuant to privilege may be viewed by the Court as an infraction of its orders, justifying appropriate sanctions.” Other CMOs followed, with three CMOs specific to pretrial management of discovery and product identification.  

​

A CMO entered in March 2002 set out the basic principles for taking fact discovery of plaintiffs, by adopting a PFS protocol to streamline the process. The PFS is a questionnaire, signed under oath, that seeks information about the plaintiffs’ injuries, medical history, current medical condition, identification of the product claimed to have caused injury, specifics of the injury suffered and the identity of plaintiffs’ healthcare providers. Plaintiffs in every docketed case were ordered to complete a PFS within set timelines. Defendants could follow up with any plaintiff who failed to submit the PFS within the allowed time and no depositions could be scheduled by the defendants sooner than 120 days after the plaintiff provided the completed PFS.  

 

By March 6, 2002, approximately 439 cases were in the MDL. Eight months later, more than 1,500 plaintiffs in 736 cases were either in, or pending transfer, to the MDL. Despite the efforts of the Defendants’ and Plaintiffs’ Steering Committees, many plaintiffs failed to comply with the requirement to complete the PFS. Additional CMOs were entered to address the challenges of getting plaintiffs to complete the PFS, including authorizing the defendants to submit a proposed order of dismissal with prejudice, of the claims of any plaintiffs who failed to identify them in the PFS and to seek additional sanctions. The court also sought to bring order and specificity to cases involving unrelated claims of numerous plaintiffs who were joined without specifying the products they allegedly ingested or the manufacturers of the products. In 2004 – at its height – 2,889 cases were pending; 25 cases were remanded; and 216 were dismissed. 

​

By 2009, when the MDL concluded, no cases were pending, 488 cases were remanded and 2,892 were settled or dismissed.

 

Approaches to Addressing Joinder and Particularity

​

During the MDL, a set of cases were filed that involved unrelated claims of numerous plaintiffs who were joined without specifying which products they allegedly ingested or the manufacturers of the products that allegedly caused their injuries. 

​

There were 29 Louisiana cases pending that attempted to join more than 1,000 plaintiffs. One case accounted for more than 500 PPA plaintiffs.  A CMO entered on May 29, 2003, directed each plaintiff in a multi-plaintiff case to file and serve an individual, new complaint within 30 days to provide specific allegations about the products allegedly ingested, the dates on which the products were ingested, the injury alleged and the dates of injury. Another CMO, issued in August, provided for dismissal with prejudice of all jointly-filed complaints, including those plaintiffs for whom a timely filed individual severed complaint was not filed, as of the effective date of the order (October 26, 2003).

​

In July 2003, the court held a status conference with the MDL legal representatives to address the problem of noncompliance with the discovery and the product-identification CMOs. During the status conference, Judge Rothstein said from the bench:

​

“I right now will tell you that any case that has not complied with my discovery order will be dismissed. Now, that sounds simple, because there are some cases you can tell right off the bat there are no fact sheets, no medical records; they will be dismissed.  But then you get into the more complicated cases that I think [counsel] was about to address, but I'm going to go into it myself. And that is cases that have not complied with my order to break down multi-plaintiff cases into single plaintiff cases with a specific complaint that sets out the facts for the case.  Now, when hundreds of cases are filed with exactly the same complaint, I would say, by definition, you're in violation of the order. And if a motion is brought, I will dismiss those cases.  Now, if there's an answer that for some reason, justifiable reason really and truly all of those plaintiffs were exactly the same and had the same injury from the same product against the same defendant on the same day, if you can convince me that that's the case, I will certainly not dismiss the case.  But the time has come to figure out which of these cases are real and which of them aren't. And if discovery hasn't been complied with, there's a strong presumption on my part that the case should be dismissed . . .”

​

Modification of Rule 9, Rule 20 and 26

​

Judge Rothstein’s ad hocapproach to require the plaintiffs in an MDL to produce meaningful evidence in support of their claims would be considered a best practice but it is not the standard in most MDLs.  Additionally, while her efforts to force the plaintiffs’ attorneys to file individual cases – rather than joining multi-plaintiff cases that lack any supporting evidence – is also considered a best practice, again is not standard to MDL cases.  Modification to three of the FRCP could address these issues across all MDLs.

 

The most efficient way to enforce meaningful pleading standards for MDL cases is to establish that Rule 9’s clear, uniform and well-understood “particularity” requirement applies to individual complaints in MDL cases. Doing so would ensure that meritorious claims proceed to litigation and prevent frivolous claims from clogging the courts’ dockets and distracting parties from the actual area of contention.

 

Rule 20 of the FRCP should be modified to provide a common standard for determining whether plaintiffs in an MDL proceeding should be joined or if instead a separate complaint should be submitted for each one.  

 

Rule 26 of the FRCP should be modified to require plaintiffs to disclose significant evidence supporting their claims early in the process.