July 31, 2020 Articles

The Rule of Law, and Rule 16, Persist in Multidistrict Litigations

The Sixth Circuit drew on a line of cases in which appellate courts had reined in MDL courts seeking efficiencies outside the scope of the Federal Rules and section 1407.

By Pravin R. Patel and Samuel J. Mendez

In many ways, multidistrict litigations (MDLs) occupy a legal territory all their own. Their governing statute, 28 U.S.C. § 1407, empowers the Judicial Panel on Multidistrict Litigation (JPML) to transfer “civil actions involving one or more common questions of fact . . . to any district for coordinated or consolidated pretrial proceedings,” in order to “promote the just and efficient conduct of such actions.” Since section 1407’s enactment in 1968, the MDL landscape has expanded to encompass nearly 40 percent of all civil actions pending in federal court. See Andrew D. Bradt, “The Long Arm of Multidistrict Litigation,” 59 Wm. & Mary L. Rev. 1165, 1168 (2018). 

A single MDL can comprise thousands—sometimes tens of thousands—of individual civil suits. And some MDLs can seem, at least, to go on interminably: MDL No. 875, In re Asbestos Products Liability Litigation (No. VI), was consolidated in 1991 and remains active to this day. Indeed, the vast majority of actions consolidated for pretrial proceedings under section 1407 never return to their dockets of origin, having been resolved by settlement or dispositive motion. See Bradt, supra, at 1169; Gelboim v. Bank of Am. Corp., 574 U.S. 405, 415 n.6 (2015).

Much as in the Wild West, some rules are altered, or jettisoned altogether, during the journey to MDL territory. Notable examples include the strictures of personal jurisdiction and venue, by which MDL courts “are simply not encumbered,” according to the JPML itself. In re FMC Corp. Patent Litig., 422 F. Supp. 1163, 1165 (J.P.M.L. 1976); see also Bradt, supra, at 1169–70.

Ultimately, however, the old world catches up to the new. In In re National Prescription Opiate Litigation, the Sixth Circuit Court of Appeals recently declared that “[t]he rule of law applies in multidistrict litigation under 28 U.S.C. § 1407 just as it does in any individual case.” Opiate Litigation, 956 F.3d 838, 841 (6th Cir. Apr. 15, 2020). And with the rule of law come the Federal Rules of Civil Procedure, “which have the same force of law that any statute does.” Id. In short, “MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance.” Id. at 844.

The procedural rule at the heart of the Sixth Circuit’s decision is an otherwise mundane one: Rule 16(b)(4), which allows a court to modify its scheduling order upon a showing of good cause. Nevertheless, the factual circumstances of the case, as well the relief the Sixth Circuit granted by writ of mandamus, were anything but ordinary.

As its caption reveals, In re National Prescription Opiate Litigation involved “claims arising out of the Nation’s opioid crisis.” 956 F.3d at 841. The petitioners seeking the writ were 12 retail pharmacy chains doing business in Cuyahoga and Summit Counties in Ohio; those counties were the plaintiff respondents. The counties first asserted their claims against the pharmacies in April 2018, suing the pharmacies in their capacity as drug “distributors” (wholesale shippers). Id. at 841–42. The counties “expressly declined,” however, to sue the pharmacies as “dispensers” (prescription fillers). Id.

The counties brought their claims in the Northern District of Ohio, where they were consolidated with more than 2,700 similar cases transferred there by the JPML. The MDL court set the counties’ claims for trial in March 2019, while the remaining 2,700 cases, having originated outside the Northern District of Ohio, went forward for pretrial purposes only (more on this subject later).

Following the court’s scheduling order, the counties and pharmacies engaged in “massive discovery, which included more than 600 depositions and the production of tens of millions of documents.” Id. at 842. A number of procedural irregularities also followed, including cancellation of the trial on the day it was scheduled to start (having already been moved from March to October).

Finally, the MDL court let it be known through the special master—a judicial officer appointed to assist the court under Rule 53—that the counties would be allowed to amend their complaints to include “dispensing claims” against the pharmacies. Those were the very claims that the counties had “expressly disavowed 18 months before.” Opiate Litigation, 956 F.3d at 942. As a result, almost 19 months after the deadline for the counties to amend their complaints, and more than 10 months after the close of discovery, discovery “proceed[ed] anew” on the counties’ freshly added claims. Id. And not only that: The court also ordered that such discovery would include “data on every prescription that the[] pharmacies had filled for virtually any opioid medication, anywhere in the United States,” for a period of 13 years. Id. The MDL court ordered the pharmacies to produce such data for the sake of “future trials of MDL cases,” despite the fact that any non-Ohio data would be inadmissible in the pharmacies’ own trial. Id. Meanwhile, the court “refused” to rule on the pharmacies’ timely motions to dismiss the new dispensing claims. Id.

All of this was too much for the Sixth Circuit Court of Appeals. The pharmacies sought a writ of mandamus—an “extraordinary remedy” available only in “exceptional circumstances amounting to a judicial usurpation of power” or a “clear abuse of discretion,” Cheney v. U.S. District Court, 542 U.S. 367, 380 (2004)—and the Sixth Circuit granted it.

The appellate court observed that the MDL judge in question was “notably conscientious and capable,” and it “recognize[d] the complexity of his task” in managing a 2,700-case docket. Opiate Litigation, 956 F.3d at 844. Nevertheless—“[r]espectfully,” the court said—the “decision to grant leave to amend was plainly incorrect as a matter of law” and, among other things, “manifest[ed] a persistent disregard of the federal rules.” Id. at 844–45.

“[T]he district court’s mistake,” the Sixth Circuit explained, “was to think it had authority to disregard the Rules’ requirements in the Pharmacies’ cases in favor of enhancing the efficiency of the MDL as a whole.” Id. at 844. Instead, “whether to grant a motion to amend in an individual case depends on the record in that case and not others,” and “a party’s rights in one case [cannot] be impinged to create efficiencies in the MDL generally.” Id. at 845. It was these “separate identities” of the individual cases that the MDL court was “bound to respect.” Id.

In reaching its conclusion, the Sixth Circuit drew on a line of cases in which appellate courts had reined in MDL courts seeking efficiencies outside the scope of the Federal Rules and section 1407. The most consequential of these was Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), in which Justice Souter, writing for a unanimous Court, found that section 1407 does not permit MDL courts to try the cases transferred to them from other districts. In so ruling, the Court shot down a “longstanding practice” that had been endorsed by both the lower federal courts and the JPML. Lexecon, 523 U.S. at 35. Allowing trial before the court that knows a case best might be “conducive to efficiency” or otherwise “desirable.” Id. at 32, 40. But such considerations were irrelevant where section 1407’s “straightforward language” required an MDL court to remand out-of-district cases once the pretrial phase was complete. Id. at 40. (Justice Scalia joined in all parts of the decision except the treatment of legislative history.)

Another case the Opiate Litigation court relied on was In re Korean Air Lines Co., 642 F.3d 685 (9th Cir. 2011). Where the Sixth Circuit held that a motion to amend the complaint had been improperly granted, the Ninth Circuit in Korean Air Lines found that the MDL court had abused its discretion in denying one. The two courts’ reasoning, however, was the same. As the Ninth Circuit wrote, “individual cases that are consolidated or coordinated for pretrial purposes remain fundamentally separate actions, intended to resume their independent status once the pretrial stage of litigation is over.” Korean Air Lines, 642 F.3d at 700. To be sure, to manage their dockets “effectively,” MDL courts have broad discretion when it comes to “the phasing, timing, and coordination of the cases.” Id. There may, too, be “room for some slight variations” between MDLs and ordinary cases in “applying the standards for amendment” and for motions to dismiss. Id. Still, “when it comes to motions that can spell the life or death of a case,” the “basic ground rules” remain the same and “may not be tossed out the window in an MDL case.” Id.

The Sixth Circuit limited its ruling in Opiate Litigation to the “plainly incorrect” granting of the plaintiffs’ motion to amend. 956 F.3d at 845. Nevertheless, “[g]iven that more than 2,700 cases remain pending in the MDL,” the appellate court offered some “observations” on the other two issues raised by the petitioners. First, it stated that the MDL court cannot simply refuse to adjudicate motions to dismiss that are properly filed under Rule 12(b). Second, with reference to the “nationwide” discovery ordered on the plaintiffs’ Ohio-based claims, the court admonished that under Rule 26(b)(1), discovery must be “proportional to the needs” of the “particular case in which the discovery is ordered.” Id. at 846.  

And so the rule of law and the Federal Rules of Civil Procedure assert themselves once more in MDL territory, though it may be too soon to lament the passing of the frontier, as many Americans did at the close of the nineteenth century. See Lawrence M. Friedman, A History of American Law 254 (3d ed. 2005). With more than a third of all civil cases moving forward on MDL dockets, and 2,700 of them in the Opiate Litigation docket alone, this likely will not be the last we hear from that wild region known as multidistrict litigation. 

Pravin R. Patel is counsel and Samuel J. Mendez is an associate in the Miami, Florida, office of Weil, Gotshal & Manges LLP. 


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