“Enough is enough.”
That is how Judge Clay D. Land, Chief Judge of the US District Court for the Middle District of Georgia, concluded the first paragraph of a scathing five-page order in the multidistrict litigation (MDL) proceeding In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation. The September 7, 2016 order includes three-and-a-half pages of what Judge Clay himself labeled “Obiter Dictum.” For non-lawyers or those not fluent in Latin, obiter dictum is that part of a judicial opinion that is not necessary to the holding of the case.
Dicta it may be, but those three-and-a-half pages offer a spot-on critique of the MDL process by an experienced judge who has garnered significant criticism from defense-side lawyers for some of his pro-plaintiff rulings in the In re Mentor litigation.
In 2004, the Judicial Panel on Multidistrict Litigation (JPML) consolidated 22 Obtape Transobturator Sling Products cases into an MDL. The plaintiffs pled various product-liability theories, including failure to warn and defective design. The product at issue is an implantable, surgical-mesh device to treat female urinary stress incontinence. At one point, as Judge Land notes in a footnote, the collection of cases in the MDL swelled to 850 thanks to “subsequent tag along transfers.”
The judge is clearly fed up with the number of frivolous claims in the MDL. Some claims, he wrote, were barred by the statute of limitations, while others lacked evidence of specific causation. In others, “counsel threw in the towel and did not even bother to respond to the summary judgment motion.” After declaring “enough,” Judge Land issued this warning:
Counsel of record in this MDL are on notice that in future orders granting summary judgment in which no good faith basis existed for maintaining the action through the summary judgment stage, the Court intends to include an addendum in the order requiring counsel to show cause why sanctions should not be imposed.
Judge Land then goes on in his obiter dictum to explain why he felt compelled to threaten “the robust use of Rule 11” to rein in frivolous claims. His criticisms echo many that corporate counsel and their outside lawyers have long lodged against the MDL process.
Congress’ original intent in creating the JPML was efficient pretrial management of common cases, with the ultimate goal being that MDL judges would transfer claims back to their original district court for trial. Judge Land, however, notes “the small number of remands back to the transferor courts for trial” as becoming the MDL norm. Rather than a pretrial management process, MDL has become “an alternative dispute resolution forum for global settlements.” Such an abuse of MDL proceedings encourages lawyers to file “cases that otherwise would not be filed if they had to stand on their own.”
The stockpiling of claims “with little regard for the statute of limitations and with … little pre-filing preparation” also leads lawyers to make decisions adverse to their clients’ interests. Judge Land bemoans “lawyers [who] seek to withdraw from representation when a global settlement is not forthcoming, leaving their clients abandoned to proceed pro se in a complex MDL proceeding.”
Judge Land acknowledges that he “has not conducted any empirical analysis to support the thesis suggested in this order, partly because the undersigned has been preoccupied with deciding summary judgment motions in marginal cases.” Based on his 15 years on the bench and oversight of two separate MDLs, he is “convinced that MDL consolidation for products liability actions does have the unintended consequence of producing … case filings of marginal merit.” Judge Land expresses general support for the continued use of MDL, but urges his fellow MDL judges to use caution and “be aware that they may need to consider approaches that weed out non-meritorious cases.”
Judicial resources in the federal courts are in severely short supply. They should not be wasted on obviously frivolous claims compiled only to compel settlements and fatten plaintiffs’ lawyers’ wallets. Frivolous claims also undercut recoveries by actually injured plaintiffs.
With nearly 40% of all civil-litigation cases pending in federal court consolidated in MDL, it is imperative that MDL judges follow Judge Land’s lead and devise disincentives to frivolous filings. Perhaps if such judges begin issuing sanctions or taking other forceful actions, their initiative will inspire similar docket management by the rest of the federal judiciary.
Also published by Forbes.com on WLF’s contributor page.