In a blog post last September, I discussed three recent mass tort multidistrict (MDL) decisions which had granted summary judgment for the defendant across the boards on the mass of litigation. In one (the Mirena IUD), the dismissal was built upon a previous striking of all experts. In the other two (Fosamax and Incretins), the dismissal occurred by application of a pre-emption defense based on a finding that the FDA would not have allowed a better warning. And I made the point that this was a major change compared to years of MDL judges allowing cases to move forward without any mass dismissals.

The question posed was whether there was a trend toward MDL transferee judges taking a big view of the whole litigation and being willing to get rid of it on motion en masse.  To further answer this question, I must go backward and forward.  First, backward: there are three other recent MDL cases in which the judge had made broad dismissals. I discuss all of these cases in my book Litigating Mass Tort Cases in a new section, 3:22.5

One of the three additional cases is In re: Lipitor (Atorvastatin Calcium) Marketing, Sales Practices and Products Liability Litigation, No. 2:14-mn-02502-RMG (D.S.C.).  These were cases of women claiming the development of diabetes while using Lipitor at various dosage strengths. In case management order no. 99 and no. 100, Judge Gergel dismissed almost all of the pending MDL cases for failure of plaintiffs’ experts, both on generic causation and case-specific causation, to demonstrate the requisite proof to avoid summary judgment.

The second is In re: Zoloft Prods. Liab. Litig, No. 12-MDL-2342 (E.D.Pa.).  Summary judgment was awarded defendant in almost all cases pending in the MDL in 2016 based on a failure of expert evidence to prove that the drug when taken by pregnant women causes birth defects. In re: Zoloft (Sertralinehydrochloride) Products Liability Litigation, 176 F. Supp. 3d 483 (E.D. Pa. 2016). An appeal has been taken.

And the third is In re: Denture Cream Products Liability Litigation, 09-2015 (S.D. Fl.). After all plaintiffs’ experts were struck—on the theory that the product caused a copper deficiency—the cases in the MDL were dismissed, and this summary judgment was upheld on appeal in an officially unpublished Eleventh Circuit decision, Jones v. SmithKline Beecham, 2016 WL 3269459 (11th Cir. June 15, 2016).

From these cases one might deduce that transferee judges have been emboldened in throwing out the mass tort assigned  to them  for  pretrial preparation under the multidistrict law, 28 USC 1407. This leads to a further thought that perhaps the approach of the judiciary has not so much changed as has the quality of the cases being brought by plaintiffs recently.

But, now moving forward:  the Third Circuit in March in the Fosamax litigation discussed above reversed the grant of summary judgment in these thigh fracture cases. In re: Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017).

The unanimous Third Circuit decision predicates its reversal on two separate bases. First, in the longer part of the decision, the court finds that the basis for the dismissal below—that as a matter of law the  judge had found that the FDA would not have allowed  the manufacturer  to upgrade its warnings—was in error, because deciding what the FDA would have done is a fact issue for the jury.

The second basis is the more interesting for mass tort aficionados.  It is in one paragraph and I would recommend reading it in full. The court points out that an MDL is composed of many individual cases. Each should therefore have been considered individually on any summary judgment motion.  If this point were applied to the other across-the-board decisions mentioned in this blog, they would not have occurred. Thus, we should recognize that we are in a transition, not sure where we are headed.

 

This post was written by Paul D. Rheingold, founding partner of Rheingold, Giuffra, Ruffo & Plotkin LLP. Rheingold has long been active in mass tort work, including leadership and educational roles in over 20 drug and medical device mass torts, including some of the largest drug and medical device mass torts. He is the author of Litigating Mass Tort Cases. A cum laude graduate of Harvard Law School, Rheingold is the former national secretary of the Association of Trial Lawyers of America (now known as the American Association of Justice). Rheingold has been a faculty member at Harvard Law School, a visiting scholar at Stanford Law School and the RAND Institute, and is a member of the New York, Massachusetts, and District of Columbia Bars.