Dunn and Finished: MDL Remand Court docket Rejects Try to Amend Grievance


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Dunn v. Sanofi-Aventis U.S. LLC, 2024 U.S. Dist. LEXIS 14111 (M.D. Alabama Jan. 26, 2024), includes yet one more post-MDL try by a remanded plaintiff to amend her criticism.  This time the court docket rejected the modification. 

Why was the modification rejected?  We’ve been seeing over the past couple of years how SCOTUS has emphasised the centrality of “historical past, custom, and textual content” in constitutional interpretation. Thoughts you, we’re not 100% clear on the excellence between “historical past” and “custom,” although we’ve got a tough thought. (Historical past is what the authors of the Structure mentioned, whereas custom is how courts and society have handled the problem through the years). Possibly historical past, custom, and textual content play roles within the Dunn court docket’s resolution to not allow an modification to the criticism. 

Right here is a few historical past: The litigation concerned claims of Everlasting Chemotheraoy Induced Alopecia. There have been sufficient instances to warrant an MDL, after which MDL folklore and mythology took over, with a Grasp Grievance (which later advanced right into a Second Amended Grasp Grievance) that contained common allegations, a Brief Kind Grievance that contained particular person allegations, then bellwether trials, then remands. The plaintiff in Dunn filed her criticism in 2017, and the case was remanded in 2023. 

Right here is a few custom (or is it extra historical past?):  In 2019 the MDL court docket denied the Plaintiff Steering Committee’s proposed Third Amended Grievance, which might have described in higher element how the defendant allegedly harmed the plaintiffs, and the way the the defendant allegedly defrauded the plaintiffs. The MDL court docket held that the proposed modification would have negated a big quantity of labor performed within the MDL and would moot earlier MDL rulings. The MDL court docket additionally denied amendments to quick type complaints that might have buttressed the claims in opposition to statute of limitations defenses. The court docket reasoned that the amendments would have set off a brand new spherical of discovery and a revision of statute of limitations defenses.  

Right here is one thing we really feel fairly snug calling custom: the regulation of the case.  Dunn was ruled by Eleventh Circuit regulation, and the Eleventh Circuit acknowledges that when a case will get transferred from one choose to a different, that’s not a chance to relitigate every little thing determined by the primary choose. Possibly a litigant can persuade the second choose that the primary dedicated clear error. However that’s a tricky take a look at. 

Right here is a few textual content: Federal Rule of Civil Process 15 supplies {that a} “celebration might amend its pleadings as soon as as a matter in fact no later than … 21 days after serving it.”  However in “all different instances a celebration might amend its pleading solely with the opposing celebration’s consent or the court docket’s depart.”  To make certain — and right here possibly we’re again to custom — depart to amend is “freely given when justice so requires,” whereas on the similar time such depart shall be denied if there may be “undue delay, unhealthy religion, or dilatory motive on the a part of the movant” or an modification would go to “undue prejudice to the opposing celebration.”  

Now that we’ve got a deal with on historical past, custom, and textual content, we ask once more, why did the Dunn court docket reject the plaintiff’s prooosed modification?

To start with, the modification was just too late. The plaintiff failed to hunt an modification through the six years this case languished within the MDL.  The plaintiff tried to excuse her inaction by arguing that the Brief Kind Grievance didn’t enable for the form of allegations she wished so as to add, however the court docket didn’t purchase that. Loads of different plaintiffs have been capable of amend their Brief Agency Complaints and add the kind of allegations that the Dunn plaintiff wished so as to add. 

Secondly, and little doubt associated, the proposed modification was functionally equivalent to the Third Amended Grasp Grievance that the MDL choose rejected.  The plaintiff in Dunn groused concerning the MDL court docket’s denial of the Third Amended Grievance, however there was no trace of clear error.  Whats up, regulation of the case. Plus, the MDL court docket accurately believed that to enable the modification would require reopening of discovery.  Who desires that?  (Nicely, apart from the unhealthy guys.) Furthermore, the modification was associated to the statute of limitations points within the MDL that arose when the plaintiffs shot themselves within the foot after they outlined when their claimed accidents occurred.  

Thus, “As a result of the Plaintiff has did not amend her criticism within the six years that this case has been pending with no justification past the issue of working inside a textual content field and pursuant to the MDL’s orders, the Court docket finds that the Plaintiff engaged in undue delay in submitting her movement.”  Finished and Dunn

We protection hacks may not all the time adore MDL folks lore and mythology and the unusual procedures they engender, however it’s good to see plaintiffs tripped up by such procedures.  

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