Senior U.S. District Judge Douglas P. Woodlock said he would issue a so-called Lone Pine order, used in mass tort cases to weed out meritless claims — and in this case, encourage the realization of a settlement. While the plaintiffs' executive committee agreed with the idea, some lawyers representing clients in the roughly 12,000-member multidistrict litigation said that Lone Pine orders have no precedent in the First Circuit and should be rejected.
Judge Woodlock disagreed.
"The defendants are at some point entitled to know about specific causation," Judge Woodlock said. "What basis does a lawyer have to file a lawsuit?"
The plaintiffs allege that the dialysis drugs GranuFlo and NaturaLyte caused heart attacks, some fatal. Fresenius has offered a $250 million settlement, and so far 7,700 plaintiffs have opted in, said Maria Durant of Collora LLP, an attorney for Fresenius. More than 1,000 claims have been dismissed, she said.
A Lone Pine order would help encourage some plaintiffs to settle, said Durant, with 97 percent of the plaintiffs needing to opt in for the settlement to take effect.
Other plaintiffs, however, are soldiering on — and they will have to explain to Judge Woodlock, with an expert report, their theories about the specific causation of their injuries.
An incredulous and slightly irritated Judge Woodlock said that some arguments against a Lone Pine order amounted to lawyers saying they didn't know enough about their cases to carry on, describing their "obdurate refusal to articulate ... whether they have a case."
Judge Woodlock also criticized law firm Hagens Berman for the control it has exerted over its clients' case. Its opposition to the Lone Pine order said that it was for all cases "filed on behalf of Hagens Berman Sobol Shapiro LLP." But lawyers file cases on behalf of their clients, not the other way around, Judge Woodlock said.
"It appears the Hagens Berman firm views this as some sort of asset they can manipulate as they see fit," Judge Woodlock said.
Molly Booker, a Hagens Berman attorney, clarified that they only filed cases on behalf of all of their clients to preserve their right to opt out of the settlement, even if, for now, they're opting in. The opt-in deadline is Dec. 31, and could be moved to even later.
Hagens Berman is representing about 250 clients, and only 70 are opting out, Booker told Judge Woodlock, but some clients might change their minds.
"We filed our opposition on behalf of all of our clients in order to preserve their opposition until that time as the deadline has passed," Booker said in an email after the hearing.
Booker also asked Judge Woodlock for case-specific expert discovery for the Lone Pine order, because Fresenius doesn't keep information about certain settings on the dialysis machines. Because of that, Hagens Berman said the firm would need to depose clinical medical directors to learn how much bicarbonate was delivered to patients to get an expert report on causation.
Judge Woodlock shot down the request.
"This is not a game," Judge Woodlock said. "I'm not opening up discovery to find a way to comply with Rule 11 if you can't now."
Hagens Berman is representing the plaintiff in the first trial in the MDL, set for Feb. 6. Judge Woodlock said he's ready to try as many cases as necessary.
The consolidated plaintiffs are represented by Hagens Berman Sobol Shapiro LLP, Herman Herman & Katz LLC, Levin Fishbein Sedran & Berman, Kreindler & Kreindler LLP, Seeger Weiss LLP and others.
Fresenius is represented by Leigh Anne Hodge and Kevin C. Newsom of Bradley Arant Boult Cummings LLP; William H. Kettlewell, Maria R. Durant and Sara E. Silva of Collora LLP; James F. Bennett and Megan S. Heinsz of Dowd Bennett LLP; and by Juanita R. Brooks of Fish & Richardson PC.
The case is In re: Fresenius GranuFlo/NaturaLyte Dialysate Products Liability Litigation, case number 1:13-md-02428, in the U.S. District Court for the District of Massachusetts.
--Editing by Catherine Sum.