McMillian v. Sanofi-Aventis U.S. LLC, 2024 U.S. Dist. LEXIS 44783 (March 13, 2024), is one other instance the place a court docket shot down a belated, post-remand try by a Taxotere plaintiff to alter the allegations of her criticism. You may assume that we’ll mimic a few of our earlier posts about remand courts fixing a multitude created by a Multidistrict Litigation (MDL) court docket. Not so. On this occasion, each the MDL and remand courts clamped down on MDL plaintiff mischief. What kind of mischief? Submitting slapdash short-form complaints, parking frail instances for years, then waking up, realizing the case is rickety, and insisting on a last-minute (or previous deadline) makeover of the case.
First, some normal background. 1000’s of plaintiffs alleged that Taxotere, a chemotherapy drug, brought on them to undergo everlasting hair loss. The instances had been collected in a MDL within the Japanese District of Louisiana.
Subsequent, our digicam focuses on the person plaintiff, McMillian, who filed her criticism within the MDL in September 2017, utilizing the usual Amended Brief Kind Criticism (SFC) then in impact within the MDL. The SFC included by reference the Amended Grasp Lengthy Kind Criticism and Jury Demand that had been filed within the MDL.
If you’re confused or irritated by this MDL terpsichore, be part of the membership. (The American Faculty of Embittered Protection Hacks?)
The plaintiff’s SFC listed ten counts of legal responsibility. Eight had been from the grasp criticism, and two got here from California regulation. The defendants filed their grasp reply (wait a minute – isn’t all this “grasp” lingo now forbidden?). Then the MDL plaintiffs filed a Second Amended Grasp (d’oh!) Criticism, which was an identical to the prior grasp criticism, apart from including two extra plaintiffs.
Up to now, that is all scene-setting. Now we get to what the screenwriters name the inciting occasion.
In October, the MDL plaintiffs sought depart to amend the grasp criticism once more, this time in search of “to now not outline their harm as manifesting six months after chemotherapy” because the prior grasp criticism alleged.
We’d have denied this request as a result of it deployed a cut up infinitive.
The MDL court docket denied it for a greater, substantive cause: “the events and the Courtroom had been working below Plaintiffs’ authentic definition of their alleged harm for years.” The MDL court docket carried out an evaluation below Fed. R. Civ. P. 15(a)(2) and concluded that the modification can be “inappropriate at the moment” as a result of the modification “would negate a major quantity of the work that has been achieved on this MDL. Defendants would undoubtedly need to revise sure professional studies and conduct supplemental depositions, and sure rulings from the Courtroom can be mooted.”
Properly achieved. Did the plaintiffs take this setback with grace and stoicism? They didn’t. There adopted an “inflow” of motions by particular person plaintiffs to amend their quick kind complaints. The MDL court docket denied these motions, reasoning that the amendments would prejudice the defendants, who would “must conduct further discovery and put together a unique statute of limitations protection.” The MDL court docket additionally issued a Pretrial Order making clear what types of amendments had been permissible and what types weren’t. The Pretrial Order additionally set a deadline for submitting such amendments. The deadline handed, and the plaintiff in McMillian didn’t file an modification within the MDL court docket.
Greater than two years after the modification deadline handed, the MDL court docket remanded Wave 2 instances, together with the McMillian case. The remand order acknowledged that the time for any pleading amendments had lengthy since handed.
Nonetheless, the McMillian plaintiff sought an modification within the remand court docket. The brand new criticism included two claims for failure to warn: negligence and strict legal responsibility. However the actual drawback was that the modification was completely at variance with the MDL grasp criticism. After all, the “six-month” definition of harm within the MDL criticism that resulted in lots of statute of limitations dismissals is among the issues the plaintiff sought to alter.
Many Taxotere plaintiffs have tried comparable gamesmanship, none have succeeded, and neither did this plaintiff. (Now we have written earlier than about Taxotere plaintiffs’ makes an attempt to amend the definition of harm in order to flee the statute of limitations.) The McMillian court docket noticed that the plaintiff had “not pointed to a single case through which a Taxotere plaintiff has been granted depart to amend a criticism in an analogous matter after remand from the MDL.” The plaintiff did direct the court docket to sure comparable motions filed by different plaintiffs, however “uncared for to say in her assertion that that a type of motions had already been denied.” Oops. And by the point of the McMillian court docket’s resolution, the opposite, comparable motions to amend had additionally been denied. Double oops. Or perhaps triple oops.
The McMillian court docket believed that what the plaintiff was making an attempt to do was “much less a movement to amend the criticism than it’s a Movement for the Courtroom to rethink prior rulings within the MDL.” Remand courts will not be fully with out energy to revisit MDL rulings, however that’s the exception somewhat than the rule. Willy-nilly deviations from MDL rulings would offend comity and regulation of the case issues, and “would frustrate the needs of centralized pretrial proceedings.” Extra particularly he level right here, the McMillian court docket noticed that the MDL court docket’s rejection of comparable amendments “to take away the six-month harm definition, and that Ms. McMillian didn’t avail herself of the MDL court docket’s course of for amending to allege plaintiff-specific details (see PTO 105) weighs closely towards the granting of the plaintiff’s current movement.”
Similar to the MDL court docket, the remand court docket in McMillian utilized Rule 15 relating to amendments (and in addition Rule 16 as as to if there was “good trigger” to amend scheduling orders), and determined {that a} post-remand modification “would prejudice defendants, … undo years of litigation and discovery efforts, necessitate the reopening of discovery, and create additional delay.”
The McMillian court docket was additionally displeased with what it perceived because the plaintiff’s “lack of candor” in characterizing the MDL court docket as placing a “proverbial pin” on the potential of modification. No, the MDL court docket had “expressly denied, a number of instances, makes an attempt by plaintiffs to amend allegations in exactly the way in which plaintiff seeks right here.” The plaintiff in McMillian was making an attempt an “end-run across the the MDL court docket’s rulings.”
The McMillian court docket did one thing that we just about by no means noticed the Philadelphia Eagles protection do final season: tackled the end-run for a loss.
