In re “Groundhog Day” Panel Proceeding

The parties to MDL 2418, In re Plavix Marketing, Sales Practices and Products Liability Litigation (No. II), have something of a knack for repeating earlier events.  The defendant pharmacologists may well benefit from that.  The scads of plaintiffs aligned against them?  Well, let’s just say they certainly admire one another’s written work product, and leave it at that.

Our story begins with MDL 2300, In re Plavix Products Liability Litigation, in which plaintiffs’ counsel represented to the Panel that they could coordinate their discovery efforts in the relatively few cases then pending, absent centralization.  Their Honors denied defendants’ 1407 motion, based in part on the paucity of cases.

Much to defendants’ chagrin, the cases multiplied and the cooperation deteriorated.  In recent months, one plaintiffs’ attorney announced that he would not work with the others, and pressed for separate discovery limited to his case.  When he filed a motion to compel with a return date a week later, defendants reached their breaking point, and within days initiated a new Panel proceeding.

Whatever failure of cooperation afflicted plaintiffs’ discovery efforts did not afflict their response to defendants’ renewed motion.  Over the course of a single day, the private plaintiffs filed six briefs:

  • Three of them opposed centralization in any court.  Two of those briefs were virtually identical.  A third was substantially identical in substance, but its authors managed to rearrange some of the words in the other two.
  • The other three opposed centralization, but proposed alternative transferee courts (the S.D. Ill., the S.D. W. Va. and the N.D. Cal.) in the event that the Panel disagreed.  Those briefs would have been identical, but the authors mixed it up (relatively speaking) by putting the sections in differing orders.  And one added some introductory language copied verbatim from two of the other group’s briefs.

The Mississippi Attorney General’s office filed a brief opposing centralization that was relatively short, but at least original in its entirety.

All seven plaintiffs’ briefs did share one thing in common.  Despite being rife with string citations, none of them undertook to distinguish the cases defendants cited in which the Panel granted a 1407 motion after having previously denied one in the same proceeding.  But two of the plaintiffs’ briefs did cite one of defendants’ cases for an entirely unrelated proposition.  imPaneled was not amused upon  seeing that.

Unfortunately, MDL 2418 was docketed too late to be heard in Dallas later this month.  imPaneled anxiously awaits the oral argument excitement that will be forthcoming in late January.


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  1. In re “Groundhog Day” Panel Proceeding – Part II « imPaneled

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  • About the blogmaster

    Bart Cohen is the principal of the Law Office of Bart D. Cohen, where he represents his clients in class actions and other complex litigation, and Winning Briefs, where he polishes, edits and drafts written work product for overextended lawyers.

    His unnatural appetites for rules and research of all kinds have made him an expert on proceedings before the Judicial Panel on Multidistrict Litigation. He feeds those appetites and chronicles the battles to land lead counsel appointments that are fought in part before the Panel on imPaneled.

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