Are there any common factors in the recent demise of some MDL mass tort actions?

September 27, 2016

courtroom juryThere is no guarantee of course that a mass tort group of cases placed in an MDL will succeed.  There are always going to be occasions when the plaintiffs’ steering committee cannot meet the criteria for proof of liability or causation, and therefore be exposed to a successful Daubert or summary judgment motion by defendants.

Recently, however, it appears that more than the usually rare event of an unsuccessful MDL has been occurring.  In review of these MDLs below, I can pose the question whether this is random or whether there is some sort of common process going on.

*Mirena.  In re: Mirena IUD Products Liability Litigation, 13-MD-2434 (CS).  Here almost 1300 claims were made by women that this IUD embedded in their uterus or perforated it.  In Daubert proceedings this year, defendant Bayer sought to strike the testimony of every expert proposed by plaintiffs.  The chief issue was causation, with the defendant denying that there was a scientific basis to claim that embedment took place over time (as compared to at insertion by the physician). After hearings, that is exactly what the MDL judge did. Case 7:13-mc-02434-CS-LMS Document 225 Filed 07/28/16. Then, since plaintiffs had no new experts to propose, defendant moved for summary judgment, and that was granted in July of this year.

Of course, the dismissal is on appeal.  The decision also does not necessarily affect a similarly large congregation of Mirena cases in state court in N.J., which by virtue of the Kemp decision, Kemp ex rel. Wright v. State, 174 N.J. 412, 809 A.2d 77 (2002), has a standard of proof more similar to Frye than Daubert.

*Incretins. In Re: Incretin Mimetics Products Liability Litigation MDL, S.D. CA. MDL no. 2452.   This involves anti-diabetic drugs in the incretin class: Januvia, Byetta, and Victoza. The main injury alleged by the MDL plaintiff is pancreatic cancer.   The defendant manufacturers moved for summary judgment in all cases on the basis of an “impossibility” defense: they could not give a warning as might be required under state law since the FDA had directed them not to issue a warning.  The court accepted that defense. Case 3:13-md-02452-AJB-MDD Document 1539 Filed 11/09/15.  All cases are on appeal, the main basis being a factual one: the court erred in interpreting the FDA’s intent.

To add injury to insult, the defendants sought to be reimbursed by plaintiffs’ counsel for their costs, which after a hearing, were calculated to be $683,440.

*Fosamax. In Re: Foxamax (Alendronate Sodium) Products Liability Litigation, D.N.J., Civil Action No. 12-1492. Here, hundreds of claims for atypical hip fractures were congregated.  Defendant Merck moved successfully in 2014 to dismiss all the cases on the same “impossibility” defense which is explained above in the Incretin cases. Case 3:08-cv-00008-FLW-LHG Document 4046 Filed 06/19/15. This decision is on appeal and may be decided soon.

Sometimes the fact that an MDL is very weak on liability or causation leads not to summary judgment motions but to the plaintiffs accepting a small, compromise settlement, maybe in the range of “high nuisance value,” as we used to call it.  The cost and the work of doling out a small amount of money to many injured plaintiffs is hardly worth the effort and only makes enemies out of your clients.  A prime example of this is the recent NuvaRing settlement.  See discussion in my treatise, sec. 9:39.99.    Here $100 million had to be doled out to 3800 women, plus money to pay the plaintiffs’ steering committee time and expenses, and that of a special master, etc.  Dealing with medical liens asserted often for as much money as the whole “recovery” by the plaintiff was not the least of the problems.

There may be little in common the above war stories, except that two of the dismissals were based on pre-emption law created by the Supreme Court. But, if nothing else, this review puts to rest the commonly made attack by corporations and defense counsel that MDLs by their sheer weight and threat create their own settlement, regardless of merits.  And, speaking to plaintiffs’ lawyers, be careful what you wish for! This is a contingency venture: you can put hundreds of thousands of dollars into an MDL in document handling, depositions and experts, and many thousands of hours of time, only to lose it all!

Titles by This Paul Rheingold