Properly Dismissed From an MDL? Yes. Properly Dismissed With Prejudice? No.

Hamer v. Livanova Deustschland GMBH, ____ F.3d ___ (3d Cir. 2021). This appeal involved one of many cases comprising MDL 2816, which is venued in the United States District Court for the Middle District of Pennsylvania. The MDL consolidated cases in which plaintiffs allegedly contracted an infection called a non-tuberculosis mycobacterium (“NTM”), after having had surgery using defendant’s 3T Heater-Cooler system.

The MDL court entered a case management order that required each plaintiff to demonstrate “proof of NTM infection” through “positive bacterial culture results showing infection with [an NTM] following surgery with” defendant’s 3T. This plaintiff did not do that because the mycobacterium was never isolated from swabs or cultures taken of his infection.

Defendant moved to dismiss his claim due to that failure. Plaintiff’s opposition asserted that, despite that, he had stated a claim under the law of Louisiana, his home state, because his wound “was suspicious for mycobacterial infection and was treated as such.” He sought to remand his case to the United States District Court for the Eastern District of Louisiana. The MDL court overrode that objection, dismissing the case with prejudice and denying remand.

Plaintiff appealed, and the Third Circuit reversed in an opinion by Judge Roth. She noted that dismissals under Federal Rule of Civil Procedure 41(b), which the parties agreed was applicable even though the MDL court had not cited it, are reviewed for abuse of discretion, and that the denial of remand invoked plenary, de novo review.

Judge Roth first stated that the MDL court had not abuse its discretion in requiring proof of NTM infection. The District Court’s case management order as to that was a “Lone Pine” order (a term, as Judge Roth noted, that derives from Lore v. Lone Pine Corp., 1986 WL 637507 (Law Div. Nov. 18, 1986)). Such orders are “routinely used by courts to streamline litigation in mass tort cases.”

Judge Roth then said “the District Court would have acted within its discretion if it had dismissed Hamer’s claims without prejudice for failure to comply with CMO 15’s NTM infection requirement, or if it had suggested remand to the transferor court. The court would even have been within its discretion to dismiss Hamer’s claims with prejudice, provided that it properly found that Hamer had not stated a prima facie case for relief under Louisiana law” (emphasis by Judge Roth).

But that is not what happened. The MDL court did not evaluate whether, though plaintiff’s claims might have been “too factually distinct to continue in MDL 2816,” they could proceed otherwise. Judge Roth said that those claims “may have merit under Louisiana law. The infection may have been caused by another organism or a Mycobacterium abscessus infection may have been eradicated by immediate treatment before a culture was taken. In addition, Hamer complained of injuries arising from an overly-long course of antibiotics.”

The right remedy, Judge Roth concluded, was remand to the Eastern District of Louisiana. But an MDL court cannot “issue a remand order directly.” What it can do was to suggest to the Judicial Panel on Multidistrict Litigation (“JPML”), which has the power to order a remand, that a remand occur. The panel ordered that the MDL court so suggest to the JPML.