J&J and 3M Demand Basic Due Diligence in Multidistrict Litigation

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Thirty-one companies, including Johnson & Johnson and 3M, have called for a policy to remove unexamined and unsupportable claims from multidistrict litigations (MDLs) early on. In a letter sent to the committee on rules of practice and procedure at the Administrative Office of the US Courts, the companies’ legal officers requested a rule that would require plaintiffs’ counsel to demonstrate “basic due diligence into plaintiffs’ claims, such as evidence of exposure to the alleged cause and a resulting injury, early in the case.” They claimed that “high volumes of such unexamined and unsupportable claims are allowed to be ‘parked’ for extended periods.”

3M, facing over 265,000 lawsuits in an MDL over claims that its Combat Arms military earplugs were defective and caused hearing loss, supports the proposal. The company stated that the proposal would “help more efficiently and fairly resolve MDL litigation for claimants with meritorious claims.” Johnson & Johnson, facing over 37,000 lawsuits in an MDL over claims that its talc products caused cancer, did not respond to a request for comment. However, the company’s worldwide vice president for litigation, Erik Haas, signed the letter. Johnson & Johnson maintains that its products are safe.

However, the proposal may face opposition from plaintiffs’ firms. Ben Whiting, a partner at plaintiffs’ firm Keller Postman, said the policy could lead to a “rather significant level of proof just to have the right to file.” The legal officers for tobacco giant Altria Group Inc, General Motors Co, and Exxon Mobil Corp also signed the letter. None of these companies have responded to requests for comment.

  

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Last year, the court administration’s subcommittee debated MDL rules and developed a sketch rule to guide judges overseeing MDLs in the early stages of the process. If the subcommittee agrees to the letter’s proposal, it could become part of that rule. The subcommittee is due to meet on March 28, when it could decide to send the proposed rule change to a larger rules committee. If approved by that committee, it could ask for public comment on the rule later this year.

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MDLs are a standard mechanism for handling large numbers of claims against a single or group of defendants. They are designed to help streamline litigation, avoid duplication of efforts, and increase efficiency. However, critics argue that they can become bloated and unwieldy, with plaintiffs making weak or unsupported claims hoping to win a settlement. The companies signing the letter hope that the proposed rule will help to alleviate this problem by weeding out unsupported claims early in the process.