It’s an MDL World: Agreement is enough, or is it?

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The JPML held its second hearing of 2022 at the end of March. We addressed the results of the first hearing recently here, and further observed the JPML’s trend over the course of the last several years in forming fewer MDL proceedings each year. As we move further into 2022, it is clear this trend has continued.

In April, the JPML formed two new MDLs out of four total petitions, bringing the cumulative total of new MDLs in 2022 to four (out of seven petitions considered)—well below the typical quarterly pace for new MDLs, including that of 2021. Through its orders, the JPML provided insights into the circumstances that justify MDL formation, and those that do not. We briefly discuss these orders below:

MDL No. 3024: In re Atrium Medical Corporation ProLite and ProLoop Hernia Mesh Products Liability Litigation

The JPML denied transfer of proposed MDL 3024, comprised of four actions involving alleged defects with ProLite and ProLoop hernia mesh products. Although the cases shared similar allegations and centralization would confer certain efficiencies, the JPML denied the transfer motion because there were few cases pending (the initial four actions plus six additional actions subsequently filed). Because there were “only a minimal number of actions” involved, the proponent of centralization had “a heavier burden to demonstrate that centralization [was] appropriate.” Also weighing against MDL treatment: two of the actions had been pending in federal court for over four years. Although movants anticipated more cases, the JPML declined to take the “mere possibility of future filings” into account.

Finally, although other hernia mesh litigations have been consolidated in different MDLs, the JPML observed that “a grant of centralization . . . does not guarantee that [it] will find centralization in another litigation alleging similar claims, and the Panel makes each of its decisions based on the circumstances presented by a particular litigation at the time.”

MDL No. 3025: In re Procter & Gamble Aerosol Products Marketing and Sales Practices Litigation

MDL 3025 involves competing putative class actions alleging benzene contamination of various aerosol body spray and dry shampoo/conditioner products, which were voluntarily recalled in November and December of 2021. Defendant moved to centralize proceedings, and plaintiffs did not oppose centralization. The primary point of contention was the appropriate transferee district. The JPML ordered transfer to the Southern District of Ohio before Judge Michael H. Watson.

The JPML found that the actions involved common questions of fact, and that centralization would serve the convenience of the parties and witnesses, eliminate duplicative discovery, prevent inconsistent pretrial rulings, including on issues of class certification and Daubert motions, and conserve the resources of the parties, their counsel, and the judiciary. Finally, the Panel chose the transferee district because eight of the 25 cases were venued there, Procter & Gamble was headquartered there, and the contract manufacturers involved in making the subject products were located in nearby Indiana and Illinois. The JPML transferred the proceedings to Judge Michael H. Watson, noting he is “an experienced transferee judge with the willingness and ability to manage [the] litigation efficiently.”

MDL No. 3026: In re Abbott Laboratories, et al., Preterm Infant Nutrition Products Liability Litigation

MDL 3026 involves claims of an alleged defect in Abbott’s cow’s milk-based preterm infant formula, marketed under the Similac and Enfamil brand names. All defendants either moved for or supported centralization, and plaintiffs also supported centralization. There were 16 cases pending in seven districts when the motion was filed, and 20 more potentially related actions were identified while the motion was pending.

The JPML found that centralization would streamline pretrial proceedings, reduce duplicative discovery and conflicting pretrial obligations, prevent inconsistent rulings on common Rule 702 challenges and summary judgment motions, and conserve resources. While the parties offered multiple competing venue proposals, the JPML found the Northern District of Illinois appropriate because it had the most cases pending and two of the defendants were based there. The JPML transferred the proceedings to Judge Rebecca Pallmeyer, in part because she is “a seasoned jurist who is well-versed in the complexities of multidistrict litigation.”

MDL No. 3027: In re Columbia River Dams Clean Water Act Litigation (No. II)

MDL 3027 was comprised of two actions from two districts, involving allegations that three hydroelectric dams owned and operated by defendants were discharging pollutants into the Columbia River in violation of federal law. Although the plaintiffs and defendants all agreed to the proposed MDL formation, and the JPML recognized certain efficiencies that would be gained through MDL formation, the Panel still denied transfer given the availability of alternative methods of coordination.

The JPML stressed that Section 1407 proceedings are a “last resort” that should only be considered after “all other options” are exhausted. Where, for example, a Section 1404 motion could eliminate the “multidistrict character of a litigation,” transfer under Section 1404 “is preferable to Section 1407 centralization.” The JPML found that there was “at least a reasonable prospect that Section 1404 transfer would allow for coordinated proceedings in the same district.”

Looking Forward

In the second JPML hearing of 2022, the JPML created two new MDLs—both product liability proceedings where the parties agreed to centralized proceedings. The next hearing is set for the end of May and will consider eight transfer petitions, which is substantially more than the number considered in the first two hearings of 2022. The following proceedings are to be addressed:

  • MDL No. 3028 − IN RE: ONE APUS CONTAINER SHIP INCIDENT ON NOVEMBER 30, 2020
  • MDL No. 3029 − IN RE: COVIDIEN HERNIA MESH PRODUCTS LIABILITY LITIGATION (NO. II)
  • MDL No. 3030 − IN RE: DEERE & COMPANY REPAIR SERVICES ANTITRUST LITIGATION
  • MDL No. 3031 − IN RE: DIRECT PURCHASER PLAINTIFF BEEF ANTITRUST LITIGATION
  • MDL No. 3032 − IN RE: FAMILY DOLLAR STORES, INC., PEST INFESTATION LITIGATION
  • MDL No. 3033 − IN RE: SENIOR HEALTH INSURANCE COMPANY OF PENNSYLVANIA REHABILITATION PLAN LITIGATION
  • MDL No. 3034 − IN RE: NEO WIRELESS, LLC, PATENT LITIGATION
  • MDL No. 3035 − IN RE: AME CHURCH EMPLOYEE RETIREMENT FUND LITIGATION

Look out for the next edition of It’s an MDL World, where we will cover the next round of decisions.

About the Author: Joe Winebrenner

Joe Winebrenner is a product liability defense attorney who defends individual, mass tort and class action litigation matters. Joe focuses on dispositive motion practice, including motions for summary judgment and Daubert motions to exclude expert testimony. He has also successfully defeated motions for class certification, and he has appeared at numerous trials on behalf of clients. Joe represents clients in various industries, including pharmaceuticals, medical devices, and consumer and construction products.

About the Author: Blake Angelino

Blake litigates, advises and assesses risk on behalf of clients in complex litigation, including product liability and mass torts, as a member of the firm’s nationally ranked product liability group. Blake has represented numerous Fortune 500 companies in the life sciences, compressed and natural gas, and construction sectors. Particularly, he collaborates with teams to represent drug and device clients to protect and defend their life-changing products.