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Opioid Update: Judge Kethledge Reclaims Solitude—and Civil Procedure

Perhaps the most notable Sixth Circuit opinion of April—and almost certainly the most quotable—was Judge Kethledge’s opinion granting mandamus and reversing leave to amend in the opioid MDL.

For a unanimous panel (Siler & Griffin, JJ.), the opinion followed the Circuit’s stay of Judge Polster’s discovery order back in February. That order would’ve required pharmacies “to produce data for nearly every opioid prescription that they have filled anywhere in the United States for the past 13 years.”

The mandamus grant, however, reached back one step further, faulting the court for granting the county plaintiffs’ leave to amend their complaint to add dispensing claims against pharmacies, 19 months after the deadline for amendments and 10 months after the close of discovery. Under FRCP 16(b), the court held, “[n]ot a circuit court in the country, so far as we can tell, would allow a district court to amend its scheduling order under these circumstances.”

The opinion is a treat to read, and we’ll let it speak for itself below. But beforehand, permit us to commend another eloquent and fascinating effort from Judge Kethledge, albeit further afield from the normal Sixth Circuit fare: this Tedx Talk at the University of Michigan, Reclaim Solitude. The subject is of course very on brand for the judiciary’s foremost advocate of solitude. (Check amazon.com and your local socially distant bookstore for Lead Yourself First.)

Three quick teasers for the speech: you learn Judge Kethledge’s first and second semester undergraduate GPAs at UofM (which would be quite good, if you add them together!); the parents among us hear compelling arguments against youngsters’ smartphones, a/k/a the Devil’s Hand Grenades; and you’ll glimpse the view from the Lake Huron hamlet where Kethledge opinions often are drafted—the most recent of which we’ll return to now.

In the opioid mandamus opinion, Judge Kethledge makes clear, plainly and repeatedly, that “the rule of law applies in multidistrict litigation … just as it does in any individual case.” As promised, we’ll let the opinion speak for itself, in solitude:

  • “An MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone. Within the limits of those rules, of course, an MDL court has broad discretion to create efficiencies and avoid duplication—of both effort and expenditure—across cases within the MDL. What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases.”

  • “Neither the Counties nor the district court have even attempted to show that the Counties demonstrated diligence as required by Rule 16(b). Quite the contrary: as the district court recognized then, and as the Counties concede now, the Counties did not bring their dispensing claims earlier because they expressly chose not to bring them.”

  • “Not a circuit court in the country, so far as we can tell, would allow a district court to amend its scheduling order under these circumstances.”

  • “The district judge in this case is notably conscientious and capable, and we fully recognize the complexity of his task in managing the MDL here. But the law governs an MDL court’s decisions just as it does a court’s decisions in any other case.”

  • “Respectfully, the district court’s mistake was to think it had authority to disregard the Rules’ requirements in the Pharmacies’ cases in favor of enhancing the efficiency of the MDL as a whole. True, § 1407 provides for the transfer of certain actions to MDL courts to “promote the just and efficient conduct of such actions”; and true, Civil Rule 1 says that the Rules should be construed “to secure the just, speedy, and inexpensive determination of every action and proceeding.”

  • “MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance. For neither § 1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely hortatory in MDL ones.”

  • “An MDL court must find efficiencies within the Civil Rules, rather than in violation of them.”

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 122

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About this Author

Benjamin Beaton Litigation Attorney Squire Patton Boggs Cincinnati, OH
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Benjamin Beaton is co-chair of the Appellate & Supreme Court Practice. He handles complex appeals, regulatory disputes and law-intensive trial proceedings. Ben has authored more than a dozen briefs at the US Supreme Court, where he previously served as a law clerk. He has drafted dozens more in the federal courts of appeal and state supreme courts, and regularly confers with trial and in-house counsel regarding appellate and motions strategy. Chambers has noted the firm’s “well-resourced appellate team, with notable experience in disputes heard before the Sixth Circuit.” The...

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