Dunn and Done: MDL Remand Court Rejects Attempt to Amend Complaint

Dunn v. Sanofi-Aventis U.S. LLC, 2024 U.S. Dist. LEXIS 14111 (M.D. Alabama Jan. 26, 2024), involves yet another post-MDL attempt by a remanded plaintiff to amend her complaint.  This time the court rejected the amendment. 

Why was the amendment rejected?  We’ve been seeing over the last couple of years how SCOTUS has emphasized the centrality of “history, tradition, and text” in constitutional interpretation. Mind you, we’re not a hundred percent clear on the distinction between “history” and “tradition,” though we have a rough idea. (History is what the authors of the Constitution said, while tradition is how courts and society have dealt with the issue over the years). Maybe history, tradition, and text play roles in the Dunn court’s decision not to permit an amendment to the complaint. 

Here is some history: The litigation involved claims of Permanent Chemotheraoy Induced Alopecia. There were enough cases to warrant an MDL, and then MDL folklore and mythology took over, with a Master Complaint (which later evolved into a Second Amended Master Complaint) that contained general allegations, a Short Form Complaint that contained individual allegations, then bellwether trials, then remands. The plaintiff in Dunn filed her complaint in 2017, and the case was remanded in 2023. 

Here is some tradition (or is it more history?):  In 2019 the MDL court denied the Plaintiff Steering Committee’s proposed Third Amended Complaint, which would have described in greater detail how the defendant allegedly harmed the plaintiffs, and how the the defendant allegedly defrauded the plaintiffs. The MDL court held that the proposed amendment would have negated a significant amount of work done in the MDL and would moot earlier MDL rulings. The MDL court also denied amendments to short form complaints that would have buttressed the claims against statute of limitations defenses. The court reasoned that the amendments would have set off a new round of discovery and a revision of statute of limitations defenses.  

Here is something we feel pretty comfortable calling tradition: the law of the case.  Dunn was governed by Eleventh Circuit law, and the Eleventh Circuit recognizes that when a case gets transferred from one judge to another, that is not an opportunity to relitigate everything decided by the first judge. Maybe a litigant can persuade the second judge that the first committed clear error. But that’s a tough test. 

Here is some text: Federal Rule of Civil Procedure 15 provides that a “party may amend its pleadings once as a matter of course no later than … 21 days after serving it.”  But in “all other cases a party may amend its pleading only with the opposing party’s consent or the court’s leave.”  To be sure — and here maybe we’re back to tradition — leave to amend is “freely given when justice so requires,” while at the same time such leave will be denied if there is “undue delay, bad faith, or dilatory motive on the part of the movant” or an amendment would visit “undue prejudice to the opposing party.”  

Now that we have a handle on history, tradition, and text, we ask again, why did the Dunn court reject the plaintiff’s prooosed amendment?

First of all, the amendment was simply too late. The plaintiff failed to seek an amendment during the six years this case languished in the MDL.  The plaintiff attempted to excuse her inaction by arguing that the Short Form Complaint did not allow for the sort of allegations she wished to add, but the court did not buy that. Plenty of other plaintiffs were able to amend their Short Firm Complaints and add the type of allegations that the Dunn plaintiff wanted to add. 

Secondly, and no doubt related, the proposed amendment was functionally identical to the Third Amended Master Complaint that the MDL judge rejected.  The plaintiff in Dunn groused about the MDL court’s denial of the Third Amended Complaint, but there was no hint of clear error.  Hello, law of the case. Plus, the MDL court correctly believed that to allow the amendment would require reopening of discovery.  Who wants that?  (Well, besides the bad guys.) Moreover, the amendment was related to the statute of limitations issues in the MDL that arose when the plaintiffs shot themselves in the foot when they defined when their claimed injuries occurred.  

Thus, “Because the Plaintiff has failed to amend her complaint in the six years that this case has been pending with no justification beyond the difficulty of working within a text box and pursuant to the MDL’s orders, the Court finds that the Plaintiff engaged in undue delay in filing her motion.”  Done and Dunn. 

We defense hacks might not always adore MDL folk lore and mythology and the strange procedures they engender, but it is nice to see plaintiffs tripped up by such procedures.