Not too way back, we mentioned the extreme indulgence of do-nothing plaintiffs within the Taxotere MDL – letting plaintiffs who took years simply to serve their complaints slide.
Right now we current In re Zostavax (Zoster Vaccine Stay) Merchandise Legal responsibility Litigation, 2022 WL 3309471 (E.D. Pa. Aug. 11, 2022), as one thing of a counterpoint. Whereas failure to serve plaintiff truth sheets for almost 18 months isn’t as egregious as not even serving a criticism for 5 years, no less than we will report that one MDL choose isn’t inclined to indulge tardy, do-nothing plaintiffs.
Zostavax concerned the form of plaintiff lethargy that we’re used to seeing in MDLs. The plaintiff – after taking solely six weeks to serve her criticism – then determined that was sufficient. She had three months to serve her plaintiff truth sheet (“PFS”) together with the supporting documentation. She didn’t. Id. at *1. The defendant efficiently moved to compel. Plaintiff blew that deadline, too. Id. The defendant then moved to dismiss. That 2×4 lastly bought some motion out of the mule:
It was not till . . ., roughly a 12 months and a half after the PFS was initially due, that [plaintiff] lastly served her PFS along with sure required documentation. [Plaintiff’s] counsel has by no means offered any foundation for the delay.
If this plaintiff thought this defendant would simply acquiesce, she had the flawed defendant – and the flawed choose. The defendant pursued the movement to dismiss that plaintiff’s lassitude had pressured it to file, and the MDL court docket granted it.
The Zostavax MDL is within the Third Circuit, and a with-prejudice dismissal sanction should meet a six-factor check:
(1) the extent of the celebration’s private duty; (2) prejudice to the adversary; (3) a historical past of dilatoriness; (4) whether or not the conduct of the celebration was willful or in unhealthy religion; (5) the effectiveness of sanctions apart from dismissal; and (6) the meritoriousness of the declare or protection.
Id. at *2 (quotation and citation marks omitted).
The primary issue was simple. Plaintiff made the mattress, and has to lie in it. “[S]ole duty for [plaintiff] not well timed producing her PFS lies squarely with both her or her counsel.” Id.
The second issue is the place Zostavax departed most notably from Taxotere. The latter was somewhat economical with what it thought-about prejudicial. The “prolonged” delay couldn’t “threaten the integrity of the judicial course of” as a result of these tardy plaintiffs have been “in the identical or considerably comparable stasis because the 1000’s of different non-bellwether plaintiffs on this MDL.” In re Taxotere (Docetaxel) Merchandise Legal responsibility Litigation., 2022 WL 2952965, at *2 (E.D. La. July 26, 2022). In different phrases, since only a few of the MDL plaintiffs should do something in any respect, who cares about 5 years of delay?
Not so in Zostavax. The delay itself was prejudicial:
[T]he delay in serving [plaintiff’s] PFS has prejudiced [defendant]. With out entry to primary data . . ., [it] is unable to mount its protection as a result of it has no details about the plaintiff or the plaintiff’s accidents outdoors the allegations of the criticism. . . . As well as, there’s important time strain on [defendant] to analyze the claims of greater than 2000 plaintiffs. For these causes, the hazard of prejudice [is] substantial.
2022 WL 3309471, at *2 (citations and citation marks omitted). All of it relies on how a lot one cares in regards to the Federal Guidelines of Civil Process – notably Rule 1, that procedural guidelines “must be construed, administered, and employed . . . to safe the simply, speedy, and cheap willpower of each motion and continuing.” Some MDLs are handled as an exception to this rule.
Issue three was one other gimme. Plaintiff displayed “a historical past of dilatoriness” by “failing to look at the court docket’s deadlines.” Id. Solely after the defendant moved to dismiss did plaintiff try “to adjust to this primary discovery obligation.” Id.
Zostavax didn’t deal individually with issue 4 – willfulness and unhealthy religion. Nonetheless, the choice did describe plaintiff’s delay as each “brazen” and “obtrusive.” Id.
Issue 5 is one other level of departure between Zostavax and Taxotere. The impact of dilatory conduct on the administration of the MDL itself mattered in Zostavax:
[T]he court docket doubts the effectiveness of any sanction apart from dismissal with prejudice. Guaranteeing obedience to discovery orders in an MDL is paramount. Sound administration of the court docket’s docket counsels in favor of sanctions as a deterrent to others, notably within the context of an MDL continuing the place there are literally thousands of plaintiffs. . . . Giving preferential remedy to a plaintiff who defies discovery obligations might trigger different plaintiffs to understand a chance to flout the invention schedule, too. The court docket won’t tacitly condone discovery abuses by the obtrusive delay in serving the PFS right here.
2022 WL 3309471, at *2 (citations and citation marks omitted).
Given all the different findings, issue six didn’t actually matter. By her personal delay, plaintiff prevented any unbiased analysis of the deserves of her case.
Zostavax is an MDL, so this is just one much less plaintiff out of some 2000. However it’s refreshing to see that anyone truly cares about whether or not plaintiffs observe the foundations.