McMillian v. Sanofi-Aventis U.S. LLC, 2024 U.S. Dist. LEXIS 44783 (March 13, 2024), is one other instance the place a courtroom shot down a belated, post-remand try by a Taxotere plaintiff to vary the allegations of her criticism. You would possibly suppose that we’ll mimic a few of our earlier posts about remand courts fixing a large number created by a Multidistrict Litigation (MDL) courtroom. 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 common background. Hundreds 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.
In case you are confused or aggravated by this MDL terpsichore, be a part of the membership. (The American School 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 legislation. 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 similar to the prior grasp criticism, apart from including two extra plaintiffs.
To date, that is all scene-setting. Now we get to what the screenwriters name the inciting occasion.
In October, the MDL plaintiffs sought go away to amend the grasp criticism once more, this time in search of “to now not outline their damage 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 break up infinitive.
The MDL courtroom denied it for a greater, substantive purpose: “the events and the Court docket had been working below Plaintiffs’ authentic definition of their alleged damage for years.” The MDL courtroom carried out an evaluation below Fed. R. Civ. P. 15(a)(2) and concluded that the modification can be “inappropriate right now” as a result of the modification “would negate a big quantity of the work that has been finished on this MDL. Defendants would undoubtedly need to revise sure skilled experiences and conduct supplemental depositions, and sure rulings from the Court docket can be mooted.”
Properly finished. 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 brief kind complaints. The MDL courtroom denied these motions, reasoning that the amendments would prejudice the defendants, who would “have to conduct further discovery and put together a distinct statute of limitations protection.” The MDL courtroom 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 courtroom.
Greater than two years after the modification deadline handed, the MDL courtroom remanded Wave 2 instances, together with the McMillian case. The remand order said that the time for any pleading amendments had lengthy since handed.
Nonetheless, the McMillian plaintiff sought an modification within the remand courtroom. 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. In fact, the “six-month” definition of damage within the MDL criticism that resulted in lots of statute of limitations dismissals is without doubt one of the issues the plaintiff sought to vary.
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 damage in order to flee the statute of limitations.) The McMillian courtroom noticed that the plaintiff had “not pointed to a single case during which a Taxotere plaintiff has been granted go away to amend a criticism in the same matter after remand from the MDL.” The plaintiff did direct the courtroom to sure comparable motions filed by different plaintiffs, however “uncared for to say in her assertion that that a kind of motions had already been denied.” Oops. And by the point of the McMillian courtroom’s resolution, the opposite, comparable motions to amend had additionally been denied. Double oops. Or possibly triple oops.
The McMillian courtroom 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 Court docket to rethink prior rulings within the MDL.” Remand courts usually are not fully with out energy to revisit MDL rulings, however that’s the exception reasonably than the rule. Willy-nilly deviations from MDL rulings would offend comity and legislation of the case issues, and “would frustrate the needs of centralized pretrial proceedings.” Extra particularly he level right here, the McMillian courtroom noticed that the MDL courtroom’s rejection of comparable amendments “to take away the six-month damage definition, and that Ms. McMillian didn’t avail herself of the MDL courtroom’s course of for amending to allege plaintiff-specific details (see PTO 105) weighs closely in opposition to the granting of the plaintiff’s current movement.”
Similar to the MDL courtroom, the remand courtroom in McMillian utilized Rule 15 relating to amendments (and in addition Rule 16 as as to whether 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 courtroom was additionally displeased with what it perceived because the plaintiff’s “lack of candor” in characterizing the MDL courtroom as placing a “proverbial pin” on the potential for modification. No, the MDL courtroom had “expressly denied, a number of occasions, makes an attempt by plaintiffs to amend allegations in exactly the best way plaintiff seeks right here.” The plaintiff in McMillian was making an attempt an “end-run across the the MDL courtroom’s rulings.”
The McMillian courtroom 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.
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