The 11th Circuit affirmed a ruling by the Trasylol MDL judge that dismissed the cases of six plaintiffs for failing to properly serve Bayer with a summons and complaint.
Why did form prevail over substance? Bayer tries to make service hard with all of their different corporate entities just hoping for this kind of outcome, a challenge we saw first hand recently in the MRI gadolinium litigation. But usually, the MDLs create some sort of more efficient means of service. In the Trasylol MDL, a pretrial order made service a little easier, allowing for service by “registered mail, return receipt requested.”
In these cases, somehow, six of the plaintiffs never served their complaints. Bayer moved to dismiss the cases. Plaintiffs argued there was good cause to not dismiss the cases because they would suffer prejudice because the cases would be, ah, time-barred if the court did not grant relief. The plaintiffs also made the crazy argument that an extension should be granted because Bayer reached a settlement in nine other similarly situated cases. That argument got shot down, as you pretty much expected.
I think the court made the right ruling. I just think the law is dumb. Cases should be fought on the merits. Bayer knew about these cases. Plaintiffs actually filled out fact statements which are what they really need to know. There was no prejudice to them. But the law specifically allows form to triumph over substance. And that will not change anytime soon.
These cases are dead unless the U.S. Supreme Court intervenes. We can safely peg the chances of that at one in a million.
- 2022 Update: Bayer agreed to pay $40 million to resolve alleged violations of the False Claims Act for conduct related to Trasylol and two other drugs