Personal Injury Law

Second Time Not the Charm for Pain Pump MDL

By James M. Beck and Mark Herrmann

When mass tort plaintiffs seek to MDL their litigation, they usually get what they want. See our earlier post on Making Book on the MDL Panel. So it's noteworthy when the U.S. Judicial Panel on Multidistrict Litigation declines to centralize proceedings. That happened for the second time in the pain pump litigation. In re: Ambulatory Pain Pump-Chondrolysis Products Liability Litigation, MDL No. 2139 (J.P.M.L. April 14, 2010).

The reasons for denial are fairly straightforward:

1. The Court had earlier declined the Section 1407 motion. In re: Shoulder Pain Pump-Chondrolysis Products Liability Litigation, 571 F. Supp. 2d 1367, 1368 (J.P.M.L 2008). (The slip opinion we received had a typo in it, stating that "In August 1988" the earlier MDL motion had been denied. 1988? Wow. That's when the Dow was under 2000, Greg Oden and Kevin Durant were born, and "Faith" by George Michael was the #1 song. That creeped us out in so many ways.) Two years later there were now 102 cases, as opposed to only 13 in 2008, but every other factor cut against an MDL. We'll get to those factors, but permit us a brief philosophical interlude. Prior failure is a pretty good predictor of future failure. That's why prosecutors usually exercise peremptory strikes against jurors who had served on hung juries. Or why the pass rate on the February bar is typically lower. Moreover, sequels are never as good as the original. (Never you mind about Godfather 2.)

2. Just as in 1988 -- oops, 2008 -- "An indeterminate number of different pain pumps made by different manufacturers are still at issue, as are different anesthetics made by different pharmaceutical companies." By the way, that fact has led some pain pump plaintiffs to file complaints where they name the entire industry as defendants, rather than do the minimal work necessary to figure out which products were used in that particular case. Some courts let plaintiffs get away with that, and some don't. We blogged about that here. In any event, most defendants "are named in only a minority of actions."

3. Most of the defendants opposed centralization. No big surprise there. But get this: several plaintiffs requested exclusion from centralized proceedings, and the plaintiffs were a long way from agreeing on exactly where the MDL should be based. (Note: if you're going to forum shop, at least get your stories straight.)

4. "[I]ndividual issues of causation and liability to continue to appear to predominate" because the products come in different designs and sizes with different volumes and flows, and plaintiffs "have different medical histories." (Wait a minute -- doesn't that last point apply in loads of MDLs that the Panel blessed? Are we witnessing a sea-change? Should we get excited? Or are we now starting to act like Cubs fans in the Fall - giddiest just before grotesque disappointment?)

5. Now the constituent actions "are at widely varying procedural stages." Some were nearly done with discovery. That's why some plaintiffs asked to exclude their cases. What's the point of MDL-ing such mush?

Interestingly, in a delightful feel-good sort of way, the Panel notes that despite plaintiffs' assertion that the data demonstrate that the infusion of anesthetic into the joint space destroys cartilage, "the science is, in fact, not so certain." That does not bode well for our friends who sit on the side of the courtroom nearer to the jury.

Will we see a round 3? Perhaps plaintiffs will come up with some proposed subclass involving certain manufacturers or cases in a nascent procedural posture. But we're betting against success. (Think Godfather 3.)

Full post as published by Drug and Device Law on May 03, 2010 (boomark / email).