Increasing attention has been given to the failure of MDL courts to apply the FRCP, particularly Rule 12(b)(6), to address meritless and inadequately pleaded claims on federal dockets in MDLs. In non-MDL cases, such claims are routinely disposed of by Rule 12(b)(6), but in an MDL, avoiding the clear impact of the rules is deemed a “necessary evil” associated with the size of the MDL.  We would much rather have courts view “necessity” as the mother of invention in this regard to find a way to enforce Rule 1’s admonition that the FRCP should “govern all actions and proceedings,” rather than the misuse of Master pleadings.

A case from a few weeks ago illustrates well that this is not a theoretical concern. Baca v. Johnson & Johnson, No. CV-20-01036-PHX-DJH, 2020 WL 6450294 (D. Ariz. Nov. 2, 2020), is one of myriad similar cases in which plaintiffs allege defects in pelvic repair systems. Before June, 2018, such cases would have been transferred to the Southern District of West Virginia as part of the Multi-District Litigation, In re: Ethicon, Inc. Pelvic Repair System Products Liability Litigation, MDL No. 2327 (“MDL”). But the MDL has since stopped accepting transfers, and so the case got traditional treatment, which meant the Rules were actually applied.

The pleading standards demand more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555. A complaint must “state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. And if a complaint alleges fraud, then it “must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). To satisfy the particularity requirement, a complaint must include an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.
Like so many of the cases parked or warehoused in the MDL, this case failed to meet those standards. the Complaint did not identify a specific manufacturing defect, either by failing to manufacture the product as designed, or by failing to manufacture the particular product in a similar way as other identical units. As the Court said, Plaintiff’s summary allegations that the product failed to perform as designed and intended, without explanation as to how those defects are tied to the manufacturing process, do not demonstrate that it had a manufacturing defect.
On warnings, the Complaint did say that plaintiff would not have relied on the product if she had known the “true facts” about the risks. But because of the learned intermediary doctrine, a defendant’s duty to warn ends once it provides an adequate warning to the healthcare provider. The focus of this failure to warn claim is on what Defendants told the health-care provider and whether inadequacies in those warnings caused Plaintiff’s injuries. On this point, the Complaint was silent. It did not name the treating physicians who received the allegedly inadequate warning, nor state that these physicians would have acted differently had they received a different warning.
The design claim failed to allege the causation element. The allegations simply failed to show how the Product caused this Plaintiff’s specific injury. And on fraud, nothing in the Complaint detailed the specific content of the allegedly relevant misrepresentation documents, when they were made, nor the identities of the key parties, such as Plaintiff’s physicians, who received the alleged misrepresentations. It was evident that the Complaint failed to allege fraud with particularity.
The contrast between that lucid analysis and the treatment of similar claims inside an MDL is stark. Perhaps reform is needed.