It’s an MDL world: JPML issues its first orders of the year, creating two new MDLs | Faegre Drinker Biddle & Reath LLP

Centralization of claims in multidistrict litigation has become the new norm, so much so that MDL proceedings now account for more than 50% of federal civil caseloads. But has the practice of MDL in the United States reached its peak? Only time will tell. While the total number of MDL cases remains high (424,720 cases as of mid-February), the vast majority of these cases are concentrated in a few of the most congested MDL cases. And as the annual MDL statistics for the past few years show, the total number of new MDL requests submitted and accepted is on the decline. In 2021, for example, the Multidistrict Litigation Judicial Panel received 33 total MDL petitions, granting only 19, compared to 44 petitions (26 granted) the previous year.

With JPML’s first hearing of 2022 now in the books, it’s clear that this trend has continued. Last month, JPML ruled on the first three MDL requests of the year, granting two and denying one. We briefly review these disputes and the Panel’s reasoning below.

MDL 3021: In re SoClean, Inc., marketing, sales practices and product liability litigation

The proposed MDL 3021 follows new MDL 3014, a multi-district litigation centered on alleged defects in continuous positive airway pressure (CPAP) devices manufactured by Philips Respironics. The SoClean litigation (MDL 3021), however, concerns an ozone device used to clean CPAP machines. Plaintiffs in this litigation have filed putative statewide class action lawsuits asserting product liability and consumer protection claims, seeking damages for personal injury, economic loss and follow-up. medical. Both plaintiffs and defendants supported centralization. At the time of the transfer motion, there were 12 cases in nine districts; 12 additional cases were filed while the petition was pending.

As an interested party, Philips responded to the request to transfer into the SoClean MDL (MDL 3021), requesting that all SoClean cases involving its CPAP machines be separated from the MDL 3021 and transferred separately to the MDL 3014 due to the overlaps provided in discovery, and to ensure that cases involving both Philips and SoClean would be litigated in an MDL, as opposed to both. The plaintiffs and SoClean opposed this request.

Ultimately, the JPML granted the transfer request and centralized all SoClean cases (including those involving Philips CPAP devices) into MDL 3021. Although the committee acknowledged a partial overlap with MDL 3014, it concluded that transferring cases involving Philips CPAP devices separately to MDL 3014 would lead to inefficiencies. Instead, he chose to create two individual proceedings (MDL 3021 and 3014) before a common judge, Judge Joy Flowers Conti of the Western District of Pennsylvania. The Committee noted that Judge Conti was “uniquely placed to preside over the overlapping claims in the SoClean MDL” and was “free to structure each MDL as she sees fit, and to establish separate pathways for discovery and other pre-trial procedures, if necessary”.

MDL 3022: In re Harvest Entities Fair Labor Standards Act (FLSA) and Wage and Hour Litigation

Plaintiffs in proposed MDL 3022 alleged federal and state labor law violations at 29 IHOP franchise restaurants. The litigation consisted of four actions in four districts. Defendants proposed centralization in the District of Maryland or, alternatively, in the Western District of Pennsylvania. The plaintiffs opposed it.

JPML found that while there were shared factual issues, “only a few actions are involved, [so] the proponent of centralization bears a heavier burden to demonstrate that centralization is appropriate. The Group of Experts rejected consolidation because “informal coordination is a practical and preferable alternative to centralization”. JPML noted that the actions before it were not complex and there were few lawyers involved, which made informal coordination even more manageable. Finally, each of the four actions involved putative distinct and non-overlapping classes – so there was no concern for competing class actions.

MDL 3023: In re Taxotere (Docetaxel) Eye damage Product liability litigation

Plaintiffs in proposed MDL 3023 alleged that the chemotherapy drug Taxotere caused eye damage. At the time of the transfer motion, there were six cases in four districts; five additional cases were filed while the petition was pending. The mobile applicant sought centralization in the Northern District of California or, alternatively, the District of Arizona, while the non-mobile applicants sought centralization in other districts. Defendants opposed centralization and, alternatively, sought centralization in the Eastern District of Louisiana, where MDL 2740 involving Taxotere’s permanent hair loss claims had previously been filed.

JPML deemed centralization to be appropriate, finding that “[a]All actions will require discovery regarding the development, marketing and sale of Taxotere; its alleged propensity to cause eye damage; the defendants’ knowledge of the risk of eye damage posed by the drug; and the adequacy of Taxotere’s warning label to this risk. JPML ordered that all cases be centralized before Judge Jane Triche Milazzo in the Eastern District of Louisiana, who is currently handling related MDL 2740, In re Taxotere (Docetaxel) Prods. Lib. Litigation Noting that the MDL 3023 and MDL 2740 proposals involved the same drug and the same defendants, as well as some of the same parties and counsel, and recognizing that there may be some overlap between the disputes, JPML considered that the centralization before the same judges to be the most appropriate.

Looking forward to

With the first JPML hearing of 2022 complete, two new product liability MDLs are added to the federal docket. The next hearing is set for the end of March, where the Panel will hear arguments on transfer requests in four MDL proposals:

  • MDL #3024: In re Atrium Medical Corporation ProLite and ProLoop Hernia Mesh Products Liability litigation;
  • MDL #3025: In re Proctor & Gamble Aerosol Products Marketing and Sales Practices Litigation;
  • MDL #3026: In re Abbott Laboratories, et al., Preterm Infant Nutrition Products Liability Litigation; and
  • MDL #3027: In re Columbia River Dams Clean Water Act Litigation (No. II).

So see you for the next edition of It’s an MDL worldwhere we will cover the most recent JPML decisions.

Comments are closed.