Essure plaintiffs moved to create a MDL in Pennsylvania on July 25. The “[p]laintiffs in all of the actions currently pending in the United States District Court for the Eastern District of Pennsylvania (except for Williams et al v. Bayer Corporation, Case No. 4:16-cv-01105)” joined in the motion to create a multi-district litigation regarding Bayer’s “permanent” torture birth control device.
Essure plaintiffs moved to create a MDL in Pennsylvania on July 25. The “[p]laintiffs in all of the actions currently pending in the United States District Court for the Eastern District of Pennsylvania (except for Williams et al v. Bayer Corporation, Case No. 4:16-cv-01105)” joined in the motion to create a multi-district litigation regarding Bayer’s “permanent” torture birth control device. NOTE: Updated information appears at the end of the article.
If approved, according to the motion, the cases will be “transferred to the Eastern District of Pennsylvania, and assigned to the Honorable Gerald A. McHugh. Judge McHugh has the experience necessary to manage proceedings of this scope involving defective medical devices.”
The motion was filed with the Judicial Panel on Multidistrict Litigation (JPML), which, according to their site, “determine[s] whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and select[s] the judge or judges and court assigned to conduct such proceedings.”
The MDL system is a convenient way of handling these cases for a number of reasons, the foremost of which is the aforementioned grouping together of similar cases for pre-trial activities. All of these activities, such as evidence discovery, pre-trial hearings, trial scheduling and settlement conferences – issues common to the grouped cases – can be decided at one time.
Other benefits of the MDL, in addition to an increase in overall efficiency, are the ease of coordination between plaintiffs’ lawyers on behalf of their clients and the reduction in overall expenses for the plaintiffs, as they don’t have to go through (and pay for) things like discovery individually. Put another way, under 28 U.S.C. § 1407, the federal law covering MDLs, the goal is to “eliminate duplicative discovery, avoid inconsistent pretrial rules, and conserve the resources of the parties, their counsel, and the judiciary.”
The judge overseeing an MDL can grant summary judgment (when it’s obvious that the opposing party can’t win based on the governing law and the facts) and/or dismiss the cases outright. At the end of the pre-trial phase, with everything in place, the judge remands (sends back) the cases to the original courts in which they were filed for the trial. The majority of mass tort injury MDLs settles before they get to the remand stage, though. If they don’t settle, the cases proceed to trial individually in those original venues.
In a possible Essure MDL, there is no doubt that many common issues of fact and law exist. The law does not require that every plaintiff has the same injury, though several do. Neither is there a doubt that centralization of discovery is beneficial as, per the motion, plaintiffs “will most likely seek the same documents from the same Defendants and depose the same witnesses. Additionally, Defendants will certainly raise the same objections, assert the same privileges, and seek the same protective orders in each of these actions. Coordination of this litigation will allow the parties to avoid unnecessarily duplicative discovery.” Furthermore, an Essure MDL will prevent inconsistent pre-trial rulings for the same reasons.
The attorneys who filed the motion chose the Eastern District of Pennsylvania for the venue due to its experience in “handling mass tort multidistrict litigation, specifically, in handling multidistrict litigation of medical device and pharmaceutical cases.”
Plaintiffs’ attorneys also state that, “In addition to the Eastern District being the venue where the first and most [federal] Essure cases have been filed, Defendant Bayer Corporation has its principal place of business in Pittsburgh, which is located in the Western District of Pennsylvania. As such, much of the pertinent evidence, relevant documents and corporate officers are likely located in or near this District. Holding pretrial proceedings in the Eastern District of Pennsylvania will serve the convenience of the parties as well as conserve judicial resources.”
It remains to be seen if the JPML agrees with the plaintiffs and their attorneys. The issue was not on the printed schedule of oral arguments for the JPML session being held today in Seattle, Washington. That is not to say that it wasn’t heard (I’ll keep checking). If, in fact, it didn’t make today’s schedule, the next scheduled hearing date is September 29, 2016 in Washington, DC.
UPDATES: This motion did not make it to oral arguments during the July panel. It will be heard on September 29, 2016.
For those who are interested, here is the Schedule of Actions (which cases are part of the motion to form an MDL).