United States: You Can Hide But You Can't Run

Last Updated: January 31 2017
Article by Michelle Yeary

Is the lesson learned by at least one plaintiff's counsel in the In re Yasmin & Yaz Mktg. Sales Practices & Prod. Liab. Litig. We already know mass tort MDLs are a breeding ground for lax plaintiff-side representation. A handful of plaintiffs' attorneys lead the charge, while the rest file their cases, and then lie in the weeds waiting for settlement. And in a system designed not to pay much attention to the individual cases, at least until the litigation is significantly advanced, missing due dates in an individual case also doesn't garner much attention. That is until it does.

Today's case isn't about preemption, or expert opinions, or off-label use, or even about pleadings standards. What it is about is an individual plaintiff's counsel being held accountable for not paying attention to MDL orders and for simply doing nothing. We're just going to tell this one like it is, because we couldn't even make up facts this absurd.

The individual case is Dzik v. Bayer Corp., 2017 U.S. App. LEXIS 684 (7th Cir. Jan. 13, 2017). Plaintiff filed her suit alleging that she suffered a blood clot from her use of Yasmin, a birth control pill. Id. at *2. Discovery, however, revealed that plaintiff had not filled a Yasmin prescription for 10 months before her alleged injury. Plaintiff's counsel suggested that plaintiff had been given samples shortly before her injury. In May 2014, defense counsel requested plaintiff produced additional medical records or even an affidavit from the prescribing doctor to substantiate use at the time of injury. Id. That requested was ignored for 15 months.

During those many months, defendant began settling the pending cases. As for non-settling plaintiffs the court entered an order (sometime in the summer of 2015) splitting them into two groups – those likely to settle and those likely not to. Pursuant to the order, if a plaintiff thought her case was likely to settle with a little more negotiation, plaintiff should so notify defendant and if defendant agreed, the case was stayed for 60-90 days to facilitate settlement. Id. at *3. For all other cases, defendant had to notify plaintiff that her case was in the non-settling group and if plaintiff didn't timely object to that classification, plaintiff had 120 days to serve a Plaintiff Fact Sheet and certain pharmacy and medical records, and a report from an expert on causation. Id. If a plaintiff failed to comply, defendant could move for dismissal and dismissal with prejudice was automatic for any plaintiff who did not respond to the motion to dismiss within 14 days.

Plaintiff's counsel in Dzik did not seek to be included in the settlement likely category. So, defendant sent the required notice to plaintiff's counsel that they either needed to object to being in the non-settling group or comply with the discovery called for under the order. Plaintiff's counsel did neither. Id. at *4.   Bayer moved to dismiss. Plaintiff failed to respond to that either. The case was dismissed. Id.

And that was when plaintiff's counsel decided to poke their heads out of their hiding spot. If you include the original discovery request that was simply ignored – plaintiffs had at least 5 separate opportunities to engage and actually litigate their client's case. They could have responded to the original requests. They could have filed a request to be considered a possibly settling case. They could have objected when defendant notified them they were in the non-settling group. They could have participate in the discovery ordered by the court. They could have filed an opposition to the motion to dismiss. They did nothing.

Until they decided to appeal the dismissal. That's right, they appealed the dismissal. We need to say it again so that it sinks in. After missing all of those deadlines and directives, they appealed the dismissal.

On what possible grounds? First, plaintiff's counsel tried to argue that the case wasn't ripe for dismissal because some unidentified attorney from plaintiff's counsel's office had reached out to some unidentified attorney in defense counsel's office within the 90 days before dismissal to discuss the need for an additional medical record. Id. at *5-6. Bayer's recounting of the contact between counsel directly contradicted plaintiff's counsel's version and because Bayer's account contained things like the who, what, where, when and why – the court afforded it more weight. Indeed, the court had a difficult time believing that plaintiff's counsel couldn't identify the name of the attorney at their firm who contacted Bayer's counsel when plaintiff's counsel's office only had 4 attorneys. Id. at *8.

Second, plaintiff's counsel argued that the court's order dividing up the cases actually put all the blood clot cases, like Dzik's, in the likely to settle category and only the "other injury" cases in the non-settling category. But the court found there is no possible way to read the order this way. "[Plaintiff's counsel's] insistence at argument that 'all the lawyers' in his office have now read the case management order but still cannot understand how Dzik's case 'became' subject to the [non-settling category] is preposterous – the order is crystal clear." Id. at *10.

Finally, the attorney primarily responsible for the case argued that he didn't respond to the motion to dismiss because he "missed it" while traveling for his 50th wedding anniversary and therefore failure to respond should be considered "excusable neglect." We've all missed a deadline. Nobody is perfect. But even if the court was willing to provide a little leeway on missing the response deadline, plaintiff's counsel didn't offer any reason for never responding to the defendant's original discovery requests, for never asking for settling case status, for not objecting to non-settling case status, or for not providing the court-ordered discovery. We'd consider it an extreme coincidence if each of those deadlines fell during plaintiff's counsel's vacations. Even if they did, plaintiff's counsel offered no explanation for why the other attorney in the office assigned to the case, who the court presumed wasn't on the anniversary trip with his colleague and colleague's wife, or anyone else at all in that office was not watching the case while counsel was away. Id. at *12. You can't realistically argue "excusable neglect" when the neglect spans almost two years.

Not surprising to us, the Seventh Circuit upheld the dismissal, finding the district court did not abuse its discretion. Id. at *12-13.

And that brings us back to the point we made at the outset. Plaintiff's counsel, with the exception of lead counsel, in these mass tort MDLs, file lawsuits and then do "mostly nothing," except sit around and wait for a settlement to appear. Plaintiff's counsel in this case admitted as much during argument:

Dzik's lawyers . . .explain that the job of a plaintiff's lawyer "consists of mostly nothing, sprinkled in with the occasional update to the client." Less should be expected of them, they infer, in contrast with Bayer's lawyers, who have "lived and breathed these cases."

Id. at *11. Plaintiff's counsel who are on the front lines and who are strong advocates for their clients should take great offense to that statement. Moreover, it begs the question why should less be expected of plaintiff's counsel? Why aren't they "living and breathing" their client's cases. Are their relationships with their clients less important than our relationships with ours? Shouldn't their clients expect more than an occasional update? We are defense counsel and we are offended by that statement. Why should defendants be forced to litigate thousands and thousands of cases if this is the level of advocacy being put forth on the other side? We won't say it's not fair, life's not fair. But where the majority of the cases in an mass tort MDL fly completely under the radar until they appear on a settlement list, we are happy to see an example, albeit an extreme one, where plaintiff's counsel tried to hide and when that didn't work, they weren't allowed to run away from their mistakes.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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