Worth our note is a recent preemption decision in In re Fosamax (Alendronate Sodium) Products Liability Litigation, 2022 WL 855853 (D.N.J. March 23, 2022). The case is noteworthy because it contains a cogent and well-reasoned exploration of many of the issues flowing from the Supreme Court’s decision in Merck Sharp & Dohme Corp. v.
MDL
An All Too Common MDL Issue
The MDL court in the 3M Earplug litigation recently rejected defendant’s motion to delay a bellwether trial. See In Re: 3M Combat Arms Earplug Products Liab. Lit., Case No. 3:19md2885 (N.D. Fla.). Bellwether plaintiff Taylor had been set to go to trial in September, but voluntarily dismissed his claims on the eve of trial, after…
Interesting MDL Article Published
Our readers interested in Multi-district Litigation may want to check out recent scholarship from Prof. Brian Fitzpatrick of Vanderbilt Law School.
In Many Minds, Many MDL Judges, 84 J. L. & Contemporary Prob. (2021, Forthcoming), the Professor asserts that the federal MDL statute may concentrate more power in the hands of a single person than…
Master Pleadings in MDLs
Ever since the In Re NuvaRing Prods. Liab. Litig. MDL, more than a decade ago, we have had concerns about the use of master pleadings in MDLs. On one hand, the requirement to file a master complaint, and answer, seems to offer some efficiency gains and ease the administrative burden on transferee courts. On the…
Annual Update on Civil Justice
Flagging for our readers interested in civil justice reform, the 2020 Federalist Society Civil Justice Update of civil justice issues by my partner Mark Behrens, Esq.
Part I focuses on broad trends. Part II discusses 2020 federal legislation and amendments to federal court rules that take effect today. Part III summarizes liability law changes at…
MDL Revises “Bellwether” Trial Process
“Bellwether” cases are an important case management tool in many MDL proceedings, which typically include numerous individual claims. A bellwether is the sheep that leads the flock, and in an MDL, these lead “test” cases may shed important light on how a jury will react to the parties’ themes, how credible and persuasive their experts are, and how the court views key legal issues. This information can at times be as, if not more, important as the amount of the actual verdict. But to shed meaningful light, the bellwether trials must produce a sufficient number of outcomes to provide relevant guidance, given the variety of fact patterns in a typical MDL. Outcomes in this context might include motions practice, but often does really mean verdicts.
Recently, the judge overseeing the device MDL, In re Cook Filter MDL (amended bellwether), No. 1:14-ml-02570 (MDL S.D. Ind.)(Third Amended CMO #27, 10/26/2020), has had to confront two issues affecting the litigation’s bellwether case management plan. The first three bellwether cases ended before trial, and now the pandemic is impacting how a new bellwether trial might proceed. Accordingly, he issued an order amending the bellwether case process, in essence asking the parties to provide additional information for the selection of viable and appropriate bellwethers.
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JPML Denies Centralization of Covid-19 Insurance Litigation
From afar it may seem that any large number of federal cases can garner MDL status, but it only seems that way. Recently, for example, the Judicial Panel on Multidistrict Litigation rejected petitions to coordinate multiple cases filed by businesses seeking insurance coverage for alleged losses during the COVID-19 pandemic. There were two groups of…