Annesley H. DeGaris.
Multidistrict litigation ("MDL") represents a staggering amount of the litigation currently pending in federal courts. However, many lawyers who do not regularly handle mass tort cases can be confused and frustrated by the MDL process as their individually filed case is swept up into a "consolidated proceeding" and transferred far away from the district in which it was originally filed. Here, court-appointed leadership, tasked with performing discovery and briefing common issues, handles the plaintiffs' side of the case. This common issue litigation sometimes leads to a bellwether trial or, more often, a group settlement; less often does it lead to a remand of individual cases.
In the "world of multidistrict litigation," something typically occurs that jump-starts the litigation. This can range from the discovery of a previously undisclosed side effect of a pharmaceutical drug to the recall of a defective implantable medical device. Sometimes an article in a medical journal or a warning letter from the FDA triggers the beginning of multiple case filings. Regardless of the catalyst, what often happens next is a motion to transfer that is filed (most often by plaintiffs' counsel, but sometimes by defense counsel) with the Judicial Panel on Multidistrict Litigation. In this pleading, a request is made to send all cases involving "common questions of fact" to a particular judicial district for the coordination of all "pretrial proceedings."
With multidistrict litigation involving cases ranging from automotive product liability, defective pharmaceuticals and defective medical devices to airplane crashes, train wrecks and various class actions, the likelihood of an attorney becoming involved in an MDL is substantial.
Authority for transfer is under 28 U.S.C. Section 1407(a) which provides that "when civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of such actions."
With multidistrict litigation involving cases ranging from automotive product liability, defective pharmaceuticals and defective medical devices to airplane crashes, train wrecks and various class actions, the likelihood of an attorney becoming involved in an MDL is substantial. For this reason, a basic understanding of the MDL process from inception to settlement or remand to the "transferor court" is important. The purpose of this article is to examine the procedures for the transfer of civil actions under section 1407, including the intricacies of the MDL process. This article also attempts to provide lawyers with basic guidance for understanding and participating in MDL litigation. While this article provides basic information, any attorney intending to be significantly involved in an MDL should consult the Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation and the Judicial Panel for Multidistrict Litigation website.
Judicial Panel on Multidistrict Litigation
The Judicial Panel for Multidistrict Litigation (" JPML") determines whether civil actions pending in various federal districts should be transferred to one federal district for coordinated pretrial proceedings and if so, selects the judge (the "transferee court") to preside over these proceedings. The panel is made up of seven circuit and district court judges appointed by the Chief Justice of the United States. The MDL panel's office is in Washington, DC, but holds bi-monthly hearings around the country. No two judges on the panel are from the same circuit. The panel has discretionary decision-making power. However, the function of the panel is to simplify case management at...