This is the sequel to “NuvaRing MDL: Plaintiffs’ Motions Victory,” blogged on August 21, 2009. We saw the post by our friends at Drug & Device Law and, predictably, we have a slightly different interpretation.
As we reported earlier, a master complaint was filed in the NuvaRing MDL (Missouri), largely at the request of Defendants. Then, attempting to perform an end-run around the procedural rules, they moved to dismiss that master complaint, ignoring the fact that they had already answered most of the individual complaints (with no motions to dismiss having been filed). The judge held (we thought properly) that Defendants could not move to dismiss.
The judge has reevaluated his position and has stricken the master complaint (it looks like this was in response to motions for interlocutory appeal, which would have really gummed up the works). This puts things back to the status quo—each individual case in the MDL will have to be decided on its own. This may not be as arduous as it seems—if answers have been filed, motions to dismiss are improper. But, there are procedural tools around that, so Defendants will probably get their chance to argue dismissal of the individual cases. So, the judge acted wisely again to keep the litigation moving.