Multidistrict Litigation Mass Terminations for Failure to Prove Causation

First, a brief survey of complete terminations of MDLs by MDL judicial decision. Up until about 2015, only a very few times over the years from the start of MDLs in 1968 had any MDLs been determined on motions (other than preemption). See Rheingold, Litigating Mass Tort Cases §§ 3:22, 3:22.50 (AAJ Press 1996, 2018 Ann. Supp.). Judges for the most part felt that their responsibility was to develop the litigation and then to settle the cases or, at worst, remand them.

Since 2015, at least five mass terminations of product liability MDLs have occurred, all based on failure to establish causation issues, as bulleted below. Note that this list omits several other total dismissals based on assertion of federal preemption as a defense (Eliquis, Incretins, and perhaps Fosamax, depending on a pending Supreme Court case). Also omitted are MDLs resulting in settlements for very small sums per case, albeit based on similar failures in proof of causation (NuvaRing).

• Lipitor, MDL 2502 (product alleged to cause diabetes). Daubert failure. The dismissal was affirmed on appeal in In re Lipitor Marketing, Sales Practices & Products Liability Litigation, 892 F.3d 624 (4th Cir. 2018).
• Mirena, MDL 2435 (product alleged to cause embedment and perforation). Daubert failure. The dismissal was affirmed on appeal in In re Mirena IUD Products Liability Litigation, 713 F. App’x 11 (2d Cir. 2017).
• Mirena II, MDL 2767 (product alleged to cause pseudotumor cerebri). Daubert failure. In re Mirena Ius Levonorgestrel-Related Products Liability Litigation (Mirena II), 341 F. Supp. 3d 213 (S.D.N.Y. 2018).
• Zoloft, MDL 2342 (product alleged to cause birth defects). Daubert failure. The dismissal was affirmed on appeal in In re Zoloft (Sertraline Hydrochloride) Products Liability Litigation, 858 F.3d 787 (3d Cir. 2017).
• Denture Cream, MDL 2015 (product alleged to cause metal deficiency). Daubert failure. The dismissal was affirmed on appeal in Jones v. SmithKline Beecham, 652 F. App’x 848 (11th Cir. 2016).

This list must be put in some perspective, however. In contrast to these five cases, there are dozens of other MDLs for defective products based on good science, which have proceeded well for the plaintiffs, ending in significant settlements (Vioxx, Fen Phen, Benicar, etc.).

A newer generation of MDL judges appear to have come to regard evaluating the merits of the cases as one of their responsibilities as an MDL transferee judge. They act just as they would if an individual case was assigned to them and the defendant sought summary judgment on a preemption defense or a failure of expert proof examined through a Daubert hearing.

Examining these five mass terminations, at least in retrospect it is apparent that they were very weak on causation. The experts presented by the steering committees in the Daubert challenge hearings failed to articulate a prima facie case of defect (inadequate warning) or causation, at least as found by the MDL judge (and, in most cases, affirmed on appeal). Even given an opportunity to come forward with a new set of experts, these mass torts still failed. Hence, motions for summary judgment were granted.

No plaintiff firm can be an originator and leader in every MDL, and so such firms have to rely on information from various sources in deciding whether to participate in any given mass tort. Nor can any firm call it right every time and invest only in winners. (This would be like the newspaper photographer sent to cover ball games—in the days when film was used—and told by his editor to “only photograph the home runs”).

Turning to the role of the Internet, one thing that all five mass torts dismissals listed above had in common was massive advertising seeking cases, by websites created by lawyers and lead generators. The lead generators would contact law firms with their “leads” consisting of anyone who called or filled out an Internet form. After that, commercial companies held paid legal seminars, at which lawyers promoted litigation involving whatever was the product, as having gigantic prospects. Also came the funders who would lend law firms money for their own advertising and to handle the cases (and all too often to make advances to clients, at phenomenal interest rates). Lawyers who became involved would next be solicited by the medical-legal industry, seeking to be hired to analyze medical records and prepare the claim forms or fact sheets needed for submission of claims into the MDL (not to mention doctors proposing additional treatment for people suffering from the product).

In my view, a root facilitator of all the activity just enumerated is the Internet. Like all firms, ours was deluged with online offers from lead generators. The public was deluged with ads to sign up for “free” consultations and product investigations. It was solely via the Internet that one learned about the “opportunity” for help in analyzing records or to borrow against our cases. Before the Internet, such activities were minimal, if they existed at all.

What is the moral of all of this? We plaintiffs should take our time and investigate for ourselves the potential proof available for causation and adequacy of labeling. Only if we take the time and make that effort can we continue to foster MDLs for the genuinely bad products that have actually injured people.
 

Paul D. Rheingold is of counsel at Rheingold Giuffra Ruffo & Plotkin LLP in New York City, New York.

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