Due to the considerable judicial resources expended addressing meritless claims, however, the judge issued an omnibus order warning counsel of record that "in future orders granting summary judgment in which no good faith basis existed for maintaining the action through the summary judgment stage, the court intends to include an addendum in the order requiring counsel to show cause why sanctions should not be imposed." It explained the order was necessary because of the high volume of marginal cases. The court cited suits being prosecuted despite being barred by the statute of limitations and cases lacking evidence or expert testimony to establish causation. In others, plaintiff's counsel failed to oppose summary judgment motions.
The court observed that though consolidation under the MDL statute is intended to promote judicial efficiency, it may instead have the "perverse" effect of encouraging the filing of weak or meritless cases in federal court. It reasoned that since MDL provides an easy and accessible forum for the global settlement of lawsuits, it allows plaintiffs to obtain a recovery "without the individual merit of their case being scrutinized as it would if it proceeded as a separate action."
The court also noted that some lawyers attempted to withdraw representation where no global resolution was reached, leaving clients "abandoned to proceed pro se in a complex MDL proceeding." As an antidote to the increase in frivolous filings in MDL courts, the panel judge stated that "robust use of Rule 11" would be employed to "weed out non-meritorious cases early, efficiently, and justly."
Challenges Ahead for MDL Plaintiffs
"Every defense lawyer is going to be waving this order in front of the judges in MDL cases," observes Tamar B. Kelber, Milwaukee, WI, cochair of the Pharmaceutical, Medical Device & Biotech Subcommittee of the Section of Litigation's Products Liability Committee. Allowing consolidation of cases into MDL has increased the number of cases filed, Kelber agrees. "There is evidence that the pendulum has swung too far into MDL-ing everything," she says. "There was thinking when MDL first started becoming popular that they were good because of efficiencies in discovery. But you have more claims being filed because there is no economic downside to being a part of the MDL," Kelber opines.
Other observers believe the filing of borderline cases can be reasonable. "From a plaintiff's counsel's perspective, sometimes cases like these need to be filed before they are fully vetted because it's difficult to get medical records before the limitations period ends, and some defendants will not agree to enter into tolling agreements," explains Karen Barth Menzies, Los Angeles, CA, member of the Plaintiff's Policy Task Force of the Tort Trial & Insurance Practice Section.
Still, counsel must advise clients regarding weak cases. "I think that if the lawyer wants to comply with the Rules of Professional Conduct, he or she should counsel the client as to the strength or weakness of the case, and if the attorney cannot impress upon the client that the client and/or attorney in this MDL may face sanctions for not having a case, then the attorney probably has to withdraw," reasons Scott E. Reiser, Roseland, NJ, cochair of the Section of Litigation's Ethics & Professionalism Committee.
The main lesson for plaintiffs' counsel is caution. "Plaintiff's lawyers should weed cases out, and if a plaintiff's lawyer discovers that the case is a dog, withdraw the case. Don't just fail to oppose summary judgment," advises Kelber.
Andrew J. Kennedy is an associate editor for Litigation News.