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September 28, 2020 Practice Points

Four Tips for Winnowing Meritless MDL Cases

A few ways to combat plaintiffs employing a “park and ride” strategy.

By Benjamin J. Broadhead and Christine R.M. Kain

In multidistrict litigation (MDL), related cases are consolidated in a single federal district court for pretrial proceedings and possible bellwether trials. MDLs are particularly common in the product liability realm, particularly cases involving a single product, drug, or medical device in large numbers. The purpose of an MDL is to conserve resources, streamline discovery, and foster consistent pretrial rulings. However, MDLs present unique challenges for defendants. Chief among those challenges is the tendency of MDLs to balloon to unmanageable levels due to the filing of meritless claims by plaintiffs employing a “park and ride” strategy. Meritless claims drive up discovery costs, complicate the selection of bellwether trials, decrease the likelihood of settlement, and force defendants to vet cases that should be vetted before filing. Due to the prevalence and magnitude of this problem, we’ve compiled our top tips for combatting meritless filings.

1.  Ask the MDL Judge to Enter Standard Screening Orders

Basic screening orders requiring plaintiff fact sheets and/or medical records proving physical injury can deter meritless filings and facilitate their prompt dismissal. These requirements are commonly ordered by MDL judges, and all MDL defendants should insist on their establishment upon centralization.

2.  Ask the MDL Judge to Enter a Lone Pine Order

A Lone Pine order is a more powerful but (unfortunately) less commonly employed case management tool at an MDL judge’s disposal. A Lone Pine order requires MDL plaintiffs to provide evidence substantiating an essential element of their claims. An example of a successful Lone Pine order is the one that was entered in the Zimmer NexGen MDL in 2016, which required each plaintiff to substantiate their claims with expert declarations by a given date, with the MDL judge dismissing the claims of non-compliant plaintiffs. Lone Pine orders are rare, but they can be a game changer for MDL defendants and should be aggressively pursued by any defendant facing a sizable catalogue of meritless claims.

3.  Set the Tone Early

Litigate aggressively and proactively at the outset. Taking immediate steps to deter meritless filings (i.e., seeking screening orders and Lone Pine orders and filing dispositive motions that apply to large swaths of cases) will discourage plaintiff advertising and scare off the type of plaintiff’s firms that make a living “pumping and dumping” meritless claims into MDLs.

4.  Aggressively Press for Bellwether Selections

An aggressive bellwether trial selection strategy can help cull meritless cases by (1) exposing the weaknesses in plaintiffs’ cases and (2) unmasking any “park-and-ride” strategy. A recent example of this occurred in the Cook IVC Filter MDL, centralized in the Southern District of Indiana, case number 1:14-ml-02570. There, the parties and court selected several “no-injury” claims (claims in which the plaintiffs did not allege any symptomatic injuries) for bellwether trials in August 2019. A year later, after Cook had devoted substantial time and resources working up the selected cases, one of the bellwether plaintiffs dismissed his case on the grounds that it had “negative value” (meaning that the cost of litigating the case exceeded the anticipated recovery) and he never anticipated the case would go to trial. Cook moved for sanctions and was awarded payment of all fees and costs it incurred in preparing the case, including attorney’s fees. This example highlights the benefits of pushing bellwether trials and serves as a warning of consequence to firms that advertise for and file “negative value” cases as part of their MDL strategy.

Benjamin J. Broadhead is an associate at Faegre Drinker Biddle & Reath LLP in Indianapolis, Indiana. Christine R.M. Kain is a partner at Faegre Drinker Biddle & Reath LLP in Minneapolis, Minnesota. 

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