Currently, rules and procedures in multidistrict litigation (MDL) cases are largely subject to the individual discretion and experience of the assigned judge, leading to inconsistencies across cases. 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 practical at a large scale. 

 

The Vioxx MDL settlement and claims process illustrates the consequences of the lack of rules today for MDL cases, as nearly a third of those who filed cases could not substantiate their claims—a fact discovered only after the case had been settled. This demonstrates the need for the FRCP to include a practical standard for verifying plaintiffs’ claims and dismissing the ones that lack merit early in the process.

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Vioxx cases consolidated into an MDL in 2005

On February 16, 2005, the Judicial Panel on Multidistrict Litigation (JPML) ruled that cases alleging injury from the use of the Merck & Co.’s pain reliever, Vioxx, pending in various federal district courts across the country, should be transferred to one federal district court for coordination. The Panel decided that the cases should be transferred to the Eastern District of Louisiana in New Orleans and appointed Judge Eldon E. Fallon to conduct the coordinated and consolidated proceedings. 

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Vioxx cases increase from 2005 through 2007 settlement

At the time of transfer in 2005 there were 148 actions pending in 41 federal districts. On November 9, 2007, when Merck agreed to pay $4.85 billion to resolve the Vioxx-related claims where a claimant had suffered a heart attack, sudden cardiac death or stroke, The New York Times reported that there were 27,000 lawsuits that covered about 47,000 sets of plaintiffs.[1]  

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Plaintiffs must meet basic requirements to participate in the settlement

Following the settlement agreement, in March 2008, the Vioxx federal MDL Court and courts in California, New Jersey and Texas entered orders requiring registration of all filed and tolled cases regardless of whether the claims were eligible to participate in the settlement. This requirement applied to cases alleging heart attacks, strokes, as well as those cases alleging “other injuries.” That effort registered more than 59,000 Vioxx claimants who were represented by counsel, and 1,224 pro se claimants. 

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Once the claimants were counted, the next step was to determine how many people would sign up for and participate in the program. Each individual or estate seeking payment had to satisfy three basic “gates” requirements developed by the court: (1) that he or she had a qualifying injury—i.e., a heart attack, an ischemic stroke, or sudden cardiac death; (2) that he or she used a minimum amount of Vioxx; and (3) that he or she took Vioxx within a proximate time of the alleged medical event.[2]  

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One-third of claimants fail to meet the rudimentary settlement requirements 

Out of 30,499 heart attack claims that went through the program, 9,888, or 32.4 percent, of the heart attack claimants were unable to satisfy the rudimentary requirements. For strokes, there were 17,863 claims that went through the gates process, and 5,399, or 30.2%, of the ischemic stroke claimants failed to provide documentation of these requirements. 

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Out of 48,362 claims that went through the process, 15,287 – nearly one-third – failed because they could not or did not demonstrate the basic facts necessary to recover.  

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Tellingly, the one-third failure rate was determined after settlement instead of earlier in the proceedings when all parties could have had a more accurate accounting of meritorious claims.  It seems likely that these claims were not properly vetted before they were filed. [3]

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Lack of established procedures allowed groundless claims to languish for years

If the Vioxx cases had proceeded individually, the FRCP would have required a basis for each claim and provided mechanisms for weeding out the meritless cases. The same rules are supposed to apply to MDL cases, but often do not.  The FRCP are cumbersome in MDL cases because there are so many plaintiffs. The result is that many plaintiffs are not required to come forward with basic medical evidence of injury and causation in the early stages of the litigation. This is what allows groundless claims to languish in the MDL proceeding for years.[4]

 

 

[1] https://www.nytimes.com/2007/11/09/business/09merck.html

[2] In re Vioxx Prods. Liab. Litig., MDL 1657, 2008 U.S. Dist. LEXIS 60269, *10-11 (E.D. La. Aug. 7, 2008).

[3] Vioxx Claims Administrator Court Report No. 29, July 27, 2010, p. 23.

[4] Andrew K. Solow et al., Sequenced Discovery in Mass Tort Litigation, Kaye Scholer LLP, Jan. 15, 2015, https://www.lexology.com/library/detail.aspx?g=88462489-d102-44b8-9464-e22aebe75067