Centralization of claims in multidistrict litigation has become the new normal—so much so, that MDL proceedings now comprise more than 50 percent of the federal civil caseload. But has MDL practice in the United States peaked? Only time will tell. While the total number of MDL cases remains high (424,720 cases as of mid-February), the vast majority of these cases are concentrated in just a few of the more crowded MDL dockets. And as the annual MDL statistics in recent years show, the total number of new MDL petitions submitted, and granted, has been in decline. In 2021, for example, the Judicial Panel on Multidistrict Litigation received 33 total MDL petitions, granting only 19—compared with 44 petitions (26 granted) the year before.
With the JPML’s first hearing of 2022 now in the books, it is clear that this trend has carried forward. Last month, the JPML ruled on the first three MDL petitions of the year, granting two and denying one. We briefly discuss these litigations and the Panel’s reasoning below.
Proposed MDL 3021 follows newly formed MDL 3014—a multidistrict litigation focused on alleged defects in Continuous Positive Airway Pressure (CPAP) machines manufactured by Philips Respironics. The SoClean litigation (MDL 3021), however, targets an ozone device used to clean CPAP machines. Plaintiffs in this litigation filed putative statewide class actions asserting product liability and consumer protection claims, seeking damages for personal injuries, economic loss, and medical monitoring. Plaintiffs and Defendants both supported centralization. At the time of the transfer motion, there were 12 cases in nine districts; 12 additional cases were filed while the motion was pending.
As an interested party, Philips responded to the transfer motion in the SoClean MDL (MDL 3021), requesting that any SoClean cases involving its CPAP machines be severed from MDL 3021 and separately transferred to MDL 3014 due to anticipated overlaps in discovery, and to ensure that cases involving both Philips and SoClean would be litigated in one MDL, as opposed to both. Plaintiffs and SoClean opposed this request.
Ultimately the JPML granted the transfer motion and centralized all SoClean cases (including those involving Philips CPAP devices) in MDL 3021. While the Panel acknowledged a partial overlap with MDL 3014, it concluded that the separate transfer of cases involving Philips CPAP devices to MDL 3014 would result in inefficiencies. Instead, it opted to create two individual proceedings (MDLs 3021 and 3014) before a common judge—Judge Joy Flowers Conti of the Western District of Pennsylvania. The Panel noted that Judge Conti was “uniquely situated to preside over the overlapping claims in the SoClean MDL” and was “free to structure each MDL as she deems fit, and to establish separate tracks for discovery and other pretrial proceedings as appropriate.”
Plaintiffs in proposed MDL 3022 alleged federal and state labor law violations at 29 restaurants in the IHOP franchise. The litigation consisted of four actions in four districts. Defendants moved for centralization in the District of Maryland or, alternatively, the Western District of Pennsylvania. Plaintiffs opposed.
The JPML found that while there were shared factual questions, “only a few actions are involved, [so] the proponent of centralization bears a heavier burden to demonstrate centralization is appropriate.” The Panel denied consolidation because “informal coordination is a practicable and preferable alternative to centralization.” The JPML noted that the actions before it were not complex and there were few counsel involved—making informal coordination even more manageable. Finally, each of the four actions involved distinct and non-overlapping putative classes—so there was no concern for competing class actions.
Plaintiffs in proposed MDL 3023 alleged that the chemotherapy medicine Taxotere caused eye damage. At the time of the transfer motion, there were six cases in four districts; five additional cases were filed while the motion was pending. The moving plaintiff sought centralization in the Northern District of California or, alternatively, the District of Arizona, while non-moving plaintiffs sought centralization in other districts. Defendants opposed centralization and, alternatively, requested centralization in the Eastern District of Louisiana, where MDL 2740 involving claims of permanent hair loss from Taxotere was already venued.
The JPML ruled that centralization was appropriate, holding that “[a]ll actions will require discovery regarding Taxotere’s development, marketing, and sale; its alleged propensity to cause eye injury; defendants’ knowledge of the risk of eye damage posed by the drug; and the adequacy of Taxotere’s warning label as to that risk.” The JPML ordered all cases to be centralized before Judge Jane Triche Milazzo in the Eastern District of Louisiana, who currently handles the related MDL 2740, In re Taxotere (Docetaxel) Prods. Liab. Litig. Finding that proposed MDL 3023 and MDL 2740 involved the same medicine and defendants, as well as some of the same parties and counsel, and recognizing that there could be some degree of overlap between the litigations, the JPML held that centralization before the same judge would be most appropriate.
With the first JPML hearing of 2022 complete, two new product liability MDLs are folded into the federal docket. The next hearing is set for the end of March, where the Panel will hear arguments on transfer motions in four proposed MDLs:
- MDL No. 3024: In re Atrium Medical Corporation ProLite and ProLoop Hernia Mesh Products Liability Litigation;
- MDL No. 3025: In re Proctor & Gamble Aerosol Products Marketing and Sales Practices Litigation;
- MDL No. 3026: In re Abbott Laboratories, et al., Preterm Infant Nutrition Products Liability Litigation; and
- MDL No. 3027: In re Columbia River Dams Clean Water Act Litigation (No. II).
So, look out for the next edition of It’s an MDL World, where we will cover the most recent JPML decisions.
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