The decision in In re Bard IVC Filters Products
Liability Litigation, 969 F.3d 1067 (9th Cir. 2020)
("Booker"), is yet another reminder that
multidistrict litigation as it is currently conducted is a
fundamentally flawed process, dedicated more to forcing settlements
than to any of the goals envisioned by Congress when it passed 28
U.S.C. §1407. The defendant had a strong preemption defense
– particularly for a Class II, non-PMA medical device –
but could not get it before an appellate court, due to the lack of
a final appealable order, until years later, after having to go
through (and lose) a "bellwether" trial. If the
plaintiffs had lost a preemption motion, of course, with a final
judgment entered against at least some of them, they would have an
immediate right to appeal. In the Booker case, ongoing MDL
settlement pressure continued and was effective to force the
resolution of a plethora of claims that were questionable, at
best.
