June 28, 2018 Practice Points

Court Stays Discovery Pending Outcome of MDL Transfer Motion

The U.S. District Court of New Mexico balances the discovery interests of both plaintiff and defendant.

By Nolan T. Herslebs

In a product-liability case, delaying discovery hurts the plaintiff. Requiring duplicative discovery hurts the defendant. Balancing these competing interests and the need to conserve judicial resources in a potential multidistrict litigation (MDL) matter, the U.S. District Court of New Mexico recently stayed all proceedings in a product-liability case while the U.S. Judicial Panel on Multidistrict Litigation considered whether to consolidate the plaintiff’s case with more than 50 others. Mims v. Davol, Inc., 2018 WL 3025059 (D.N.M., 2018).

The plaintiff was one of many who sued separately for damages arising from the use of a hernia mesh product. More than 50 other lawsuits were pending involving the same medical device. The defendants moved to stay all proceedings in the plaintiff’s case—already in its second year—while the MDL panel considered whether to consolidate it with the other cases. The defendants argued that they would suffer unfair prejudice if they had to “expend significant resources on this discovery, including potential duplicative expert discovery and discovery disputes, if the case may be transferred to the MDL.” The plaintiff argued that she would suffer unfair prejudice from the delay and disruption of her discovery efforts.

The court granted the stay, applying the three factors used in Rivers v. Walt Disney Co., 980 F.Supp. 1358, 1360 (1997): (1) potential prejudice to the non-moving party, (2) hardship and inequity to the moving party if the action is not stayed, and (3) the judicial resources that would be saved by avoiding duplicative litigation if the cases are in fact consolidated. The plaintiff’s argument that she would suffer unfair prejudice was an issue for the MDL panel to weigh. Further, the potential delay would likely only be a few months. Lastly, and most persuasive, the potential hardship and inequity placed on the defendants would be more costly and unreasonable because of the possibility of duplicative experts and discovery.

Defense counsel should bear in mind that MDL motions, combined with motions to stay, can help keep their clients’ discovery costs down. Plaintiffs’ counsel are forewarned that their discovery progress might come to a grinding halt while MDL motions are pending.


Nolan T. Herslebs is a law student at Cumberland Law School in Birmingham, Alabama.


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