Product Liability Plaintiff Lawyers Warned They May Pay For Filing Frivolous Suits

By Paul Barrett | September 19, 2016

Lawyers who defend companies in product liability cases are celebrating an unusual order by a federal judge in Columbus, Georgia. In it, he told attorneys for the other side—the ones who represent injured consumers—that he was going to crack down on frivolous claims, and that the penalty could come from their wallet.

The five-page order appeared last week from Chief U.S. District Judge Clay Land of the Middle District of Georgia. He issued it in connection with hundreds of consolidated cases he oversees concerning a “vaginal mesh” device made by Johnson & Johnson unit Mentor Corp. that’s designed to treat urinary stress incontinence.

Now, it’s true that bashing plaintiff’s lawyers for frivolous litigation is old hat. But the reason company lawyers are excited by Land’s handiwork is that he placed the blame for such dubious claims on the procedures courts use to consolidate cases. Land, appointed to the bench by Republican President George W. Bush, said in his Sept. 7 ruling that he’s “had to waste judicial resources deciding motions in cases that should have been dismissed by plaintiffs’ counsel earlier—cases that probably should never have been brought in the first place. Enough is enough.”

From now on, he warned, he would impose sanctions, including possible money penalties, when dismissing such flimsy cases.

The Washington Legal Foundation, a pro-business advocacy group, praised Land for his “spot-on critique of the multi-district litigation process.” Multi-district litigation, or MDL, is a procedural mechanism by which the federal courts group together related suits—such as the Mentor vaginal mesh cases—and put them under the supervision of a single judge. The idea is that the MDL judge can help the parties resolve certain pretrial issues the cases may have in common and thereby speed up a settlement, or trial.

Judge Land observed that whatever the advantages of the process, there are also “unintended consequences.” One is that the tendency of MDLs to end in global settlements creates an incentive “for the filing of cases that otherwise would not be filed if they had to stand on their own merit,” Land asserted. In other words, attorneys with flimsy lawsuits jump on the bandwagon knowing they’ll probably get a piece of the pie without anyone taking a hard look at their client’s case. Such suits are often filed for claims that are too old and with only a minimal amount of evidence, he wrote.

“This phenomenon produces the perverse result that an MDL, which was established in part to manage cases more efficiently to achieve judicial economy, becomes populated with many non-meritorious cases,” Land wrote, “cases that likely never would have entered the federal court system without the MDL.”

Since 2010, tens of thousands of vaginal mesh cases have been filed against a half-dozen device makers in federal courts around the country. Johnson & Johnson has faced the most claims. To handle the vast caseload, MDLs have been arranged in New Jersey, West Virginia, and elsewhere. Women who have had mesh inserted to support sagging organs or treat incontinence have subsequently complained that the devices eroded and caused a variety of injuries.

Judge Land’s Mentor MDL began with 22 cases and grew to more than 850—an “explosion,” he said, that “appears to have been fueled, at least in part, by an onslaught of lawyer television solicitations.” So far, Land has presided over three trials, decided about 100 summary judgment motions (aimed at throwing out lawsuits before trial) and presided over 458 confidential settlements. Plaintiffs have dropped 74 cases voluntarily. (The device in question was taken off the market in 2006.)

From here on out, Land warned, plaintiffs attorneys should assume that he’ll make “robust use of Rule 11,” the federal court rule that provides for sanctions against attorneys. And he urged other judges to follow his example.

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