Although a mass settlement plan may commend itself to many claimants, there are always likely to be some who are unsatisfied and want to continue litigating (or their lawyers do ). A further decision in the Vioxx MDL litigation involved certain plaintiffs who had opted not to join the settlement program, In Re: Vioxx Products Liability Litigation (Dier), 388 Fed.Appx. 391, 2010 WL 2802352 (5th Cir. 2010).
Here a small band of holdouts had been ordered by the MDL judge to provide medical reports on their cases, under the so-called Lone Pine procedures. They defaulted; their cases were dismissed, and an appeal followed.
The Fifth Circuit held that the court had the power to make such an order; that the plaintiffs lacked standing to attack the settlement plan, since it was an opt-in plan and not an opt-out one; and that the court did not abuse its discretion in refusing to recuse himself.