Sixth Circuit Curbs Multidistrict Litigation

The appeals court's ruling arose in the context of the consolidated prescription opioid MDL pending in the Northern District of Ohio against national retail pharmacy chains (along with manufacturers and wholesale distributors of prescription opioids). The bellwether plaintiffs—two Ohio counties—originally sued the retail pharmacy chains based only on their self-distribution of opioids, not on their dispensing of opioids. Nineteen months later—after discovery and summary judgment briefing on those claims had closed—the MDL court allowed the counties to add new dispensing claims against the pharmacies. It also refused to rule on the pharmacies' motion to dismiss and ordered sweeping nationwide discovery on the new claims. The MDL court justified these orders on the ground that the counties' suits were part of a sprawling nationwide MDL, so its procedural rulings did not need to relate to the counties' specific cases. 

A unanimous Sixth Circuit panel granted the extraordinary writ of mandamus to correct the MDL court's mistaken rulings. The appeals court affirmed that "[t]he rule of law applies in multidistrict litigation under 28 U.S.C. § 1407 just as it does in any individual case." Although an MDL court has broad discretion to create efficiencies across cases within an MDL, it may not "distort or disregard the rules of law applicable to each of those cases." "MDLs," the Sixth Circuit explained, "are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance." 

The Sixth Circuit's ruling ensures that "a party's rights in one case" in an MDL cannot "be impinged to create efficiencies in the MDL generally."

In re CVS Pharmacy, Inc., et al., No. 20-3075 (6th Cir. Apr. 15, 2020). 

(As a matter of public record, Jones Day represents Walmart in this matter, and counsel on the briefs were Ben Mizer, Tina Tabacchi, Tara Fumerton, Rob Johnson, and Mary Schnoor.)