MDLs are supposed to follow the Federal Rules of Civil Procedure. That’s the reminder the Sixth Circuit gave in In re National Prescription Opiate Litigation, 956 F.3d 838, 844 (6th Cir. 2020):
[T]he law governs an MDL court’s decisions just as it does a court’s decisions in any other case. . . . Here, the relevant law takes the form of the Federal Rules of Civil Procedure. Promulgated pursuant to the Rules Enabling Act, those Rules are binding upon court and parties alike, with fully the force of law. . . . Respectfully, the district court’s mistake was to think it had authority to disregard the Rules’ requirements . . . in favor of enhancing the efficiency of the MDL as a whole. . . . But MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance. For neither §1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely hortatory in MDL ones.
Id. at 844 (citations omitted). More recently the Civil Rules Committee made the same point in approving new Fed. R. Civ. P. 16.1: “The Rules of Civil Procedure, including the pleading rules, continue to apply in all MDL proceedings.” Comment to Rule 16.1(b)(3)(A).
Bad things happen – usually to defendants – when an MDL adopts practices designed to cut procedural corners that the drafters of the rules put there for a reason.
Our latest example is In re Philips Recalled CPAP, Bi-Level PAP, & Mechanical Ventilator Products Litigation, 2025 WL 1322162 (W.D. Pa. May 7, 2025). The defendant settled – we think wisely – the personal injury and related claims brought in this MDL litigation. Being out of pocket a substantial sum due to the settlement, the defendant brought a third-party action seeking contribution from another defendant that allegedly marketed a cleaning chemical that made things worse. Id. at *1. Unfortunately for the defendant, multiple procedural shortcuts agreed to before the settlement came back to haunt it, and cost it a significant chunk of those claims.
The decision described the extra-procedural procedures that were the culprits:
The master personal injury complaint was filed in this transferee court pursuant to an agreed-upon pretrial order. The third-party complaint in issue asserted contribution claims arising from payments made or which will be made to individuals who participated in a settlement and (1) had their claims identified on a census registry, but did not file a separate case; (2) filed separate cases that were transferred to this court pursuant to 28 U.S.C. §1407; (3) had separate cases locally filed in this court; and (4) directly filed cases in this court pursuant to a pretrial order, with the intent that the case would be “remanded” at the conclusion of pretrial proceedings to another district.
Id. (footnotes omitted). Thus, this MDL featured not one, not two, but three notorious MDL rules dodges that we’ve criticized previously: master complaints, census registries, and direct filing. Put them together and the defendant acting as third-party plaintiff lost jurisdiction over some of the claims it sought to bring.
As for the master complaints, there were three of them, filed by consent, after “plaintiffs’ leadership counsel explained that [they] were being filed as an ‘administrative vehicle,’” whatever that meant. Id. at *2. Such complaints meant that plaintiffs never had to take the time to “draft[] unique personal injury complaints. Id. at *3. Master complaints, which are nowhere mentioned in the federal rules, id. at *15, are chameleons, either “administrative” or “operative” “based on the behavior of the district court and parties.” Id. at *16. Here, in practice the parties chose to treat the master complaints as “operative” despite plaintiffs’ misleading earlier statements. Id.
The census registry as well “was jointly proposed by the parties.” Id. at *3. Without ever filing complaints, such “participants” provided some information about their supposed claims in return for tolling the statute of limitations. Id.
Direct filing was also allowed. Plaintiffs from anywhere in the country could skip the transfer process provided by the MDL statute and file in the MDL, as long as they “identif[ied]” where “the action would otherwise have been filed,” “which shall be the presumptive place of remand.” Id. at *3. No Lexecon waivers (see here if you want to know what those are) were made. Id. Service was essentially done away with altogether – uploading a short-form complaint to the MDL website was sufficient. Id. at *5.
All of this was extended, again by agreement, to the defendant’s third-party actions. Id. at *5-6.
But when corporations sue other corporations, jurisdictional issues can get messy – and they did here: “At least one of the . . . third-party plaintiffs and one of the . . . third-party defendants are citizens of Delaware.” Id. at *6. Oops, there goes diversity jurisdiction. Moreover, the substantive claims, for...
