Does the establishment of an MDL invite the filing of cases with marginal merit?

November 2, 2016

courtroom juryFor defendants who often claim that cases of little or no merit are filed once an MDL for a mass tort has been set up, they now have something to cite: the September decision by Chief Judge Clay Land in the transvaginal mesh litigation, In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, M.D. Ga., 4:08-MD-2004 (Document 1039, 9/7/16).

The Obtape litigation is one of a number of transvaginal mesh product cases, where the claims in total have exceeded 100,000.  Judge Land had some 850 Obtape cases transferred to his MDL.  As the litigation proceeded, the judge dutifully tried some cases; the defendant settled many of the ones which it felt had value; and some other cases were transferred back to the courts where they had originally filed.  But this left a large residue of cases which the defendant refused to settle and instead sought summary judgment (SJ). The court indicates that it had already decided over 100 SJ motions (but also that some 74 cases had been voluntarily dismissed by plaintiffs’ counsel).

In his opinion Judge Land cites two examples of the grounds used to seek SJ: the running of the statute of limitations and failure to have a case specific expert’s report on causation.  He indicates that he has had to rule on many of these cases when the plaintiff had no basis for opposition to the motion.  All of this, he found, made him “waste judicial resources deciding motions in cases that should have been dismissed by plaintiff’s counsel” voluntarily.

Judge Land concludes his order with a threat to utilize Rule 11 sanctions against attorneys who do not voluntarily dismiss cases that have no merit. He will require counsel to show cause why sanctions should not be imposed.

What has attracted the most attention to the September decision is not the order but the end section, appropriately entitled Obiter Dictum.  Here the judge, based on his experience in two MDLs, castigates the filing of cases with little or no merit.  This he ties to “to an onslaught of lawyer television solicitations.” Plaintiffs’ lawyers, he fear, believe that any case can be swept into a global settlement and be paid something.

Judge Land also offers some views on a related problem arising in the mass indiscriminate filing of cases by a firm.  When problems arise, the law firm seeks to withdraw as counsel.  The judge’s practice here has been to transfer the case back to the court where suit was filed, giving an advantage to the client who is usually acting pro se.  This practice, he observes, often leads to a reconciliation of client and lawyer.

While the commercial and defense bar has gloried in this decision, there are some limits to what the judge is complaining about.  First, it is the court’s job to decide SJ motions, just as it the job of plaintiffs’ counsel to represent their clients zealously.  Second, a defendant, such as Mentor here, can avoid making many SJ motions if it works out a comprehensive settlement plan.  This can place the burden on the plaintiff to take action.  If the case is excluded from the plan or a very small payment is offered (such as 5% of value if the SOL seems to have run), the outlying case will normally just dry up through failure to prosecute, and there is no need to seek SJ.

Titles by This Paul Rheingold