We are in the midst (at least we hope we are that far) of wrapping up an MDL settlement. As is typical, the settlement envisions a minimum participation rate After all, why would a client fling a fat wad of cash at plaintiffs' counsel, only later to fling not-quite-as-fat-wads at their own counsel to continue litigating an MDL that was supposedly put to rest? The idea is to buy peace, not to subsidize adverse litigation. Sadly, and, again, as is typical, now we hearing that hitting the participation rate might be hard because a considerable number of the plaintiffs cannot be found. Oh, and now it seems that plenty of those plaintiffs who can be found cannot find any proof of usage or injury.
It is hard for us to resist hurling a great, big told-you-so at
the court. We knew the inventory was chock full of garbage. We
mentioned that more than once. The judge and special master rolled
their eyes. Just settle, they told us. Just handle the inevitable
infirmities on the back end, they told us. Of course, we would
never have the temerity to complain to the court about how its
refusal to vet cases early on led to this farce. But maybe someday
we will write an article about it. Or a blogpost.
How do plaintiff lawyers misplace their clients? Sometimes
plaintiffs move. And sometimes they move on to the afterlife. When
that happens, there is usually a requirement that their lawyers
file a suggestion of death and substitute in a new plaintiff. That
shouldn't be so hard, right? You'd be surprised. Or maybe,
if you've been in this business a while, you wouldn't be
surprised at all.
In the Bair Hugger MDL, plaintiffs' counsel did not file timely suggestions of death under either the relevant pretrial order (PTO) or under the Fed. R. Civ. P. 25. Indeed, it was the defendant who notified plaintiffs' counsel of the deaths. Nonetheless, plaintiffs opposed dismissals as a result of their own defaults. The plaintiffs asked for an extension of PTO 23's 90 day deadline for filing a suggestion of death. The district court refused to amend the deadline, but acknowledged it might excuse tardiness where compliance was impossible or where plaintiffs' counsel demonstrated diligent efforts.
In the meantime, the district court granted summary judgment to the defendant (on substantive grounds not relating to the suggestion of death issue) and poured the plaintiffs out of court. But then the Eighth Circuit reversed. The case came back to the district court. The parties agreed on a new schedule under PTO 23.
And then would you believe that there were still cases where no timely suggestion of death was filed? Yes, of course you would. You would believe that because you are obviously intelligent (you are, after all, reading this blog), you probably have a J.D. degree, and you are a sentient being.
The issue in In re Bair Hugger Forced Air Warning Devices Prods. Liab. Litig., 2024 U.S. Dist. LEXIS 138077 (D. Minn. Aug. 5, 2924), was whether the court would dismiss cases in which suggestions of death and/or motions to substitute parties had not been timely filed. The answer, gladdening our flinty defense hack hearts, was mostly yes.
The plaintiffs first tried and failed to eliminate the deadline entirely. Under PTO 23, the deadline is excused for "detailed diligent & good faith efforts to comply." The court had the power to dismiss for violations of the PTO. The plaintiffs are not entitled to ignore the deadline generally, either for lack of prejudice or generalized excuses. The Bair Hugger court reasoned that the PTO 23 deadline was designed to "obligate counsel to ascertain whether or not their clients are alive and, if necessary, move for substitution. The process prevents deceased plaintiffs from populating and inflating the MDL docket and allows the Court and Defendants to know the true size of the MDL. This ultimately prevents court congestion and undue delay in resolving the MDL. These benefits justify dismissing plaintiffs who willfully disobey PTO 23."
The Bair Hugger court sounded a little exasperated with the plaintiffs' shenanigans. More to the point, it sounded ready to enter some dismissals.
But before the court could do so, it first had to deal with further plaintiff shenanigans. The plaintiffs contended that PTO 23 was unconstitutional in requiring plaintiffs' counsel to contact next of kin, due to lack of representation of the next of kin. To call that argument sophistry is to give it too much credit. That reasoning, if you can call it that, would make the entire rule (both the federal rules and the PTO) toothless and let suggestions of death pend indefinitely. The Bair Hugger court rejected the constitutional argument.
Then the court got down to specific cases. There were various permutations of nonfilings and late filings. And there were various forms of weak excuses, along the lines of the dog ate my homework, or the sun was in my eyes, or lawyering is hard. The court dismissed several individual cases for lack of any good cause for plaintiffs' failure to file suggestions timely, or alternatively, untimely motions to substitute, or in many cases both. That "nothing was happening" in the cases was not enough. Periodic newsletters did not suffice.
This order by the Bair Hugger court provides yet another example of plaintiffs' counsel failing in MDLs to do even the absolute minimum to keep cases active. One case was dismissed where the plaintiff died before the initial complaint was filed. That sort of thing prompts a rueful shake of the head. It is nonsense. But MDLs are often vast piles of nonsense. At least in the Bair Hugger case, it appears that the district court had run out of patience for such nonsense.
This article is presented for informational purposes only and is not intended to constitute legal advice.