Remanding Multidistrict Litigation

• Author: Elizabeth Chamblee Burch
• Position: Associate Professor, University of Georgia School of Law.
• Pages: 399-424

Remanding Multidistrict Litigation

Elizabeth Chamblee Burch

*

INTRODUCTION

Scholars and commentators have long lamented vanishing

trials, empty courtrooms, and the rise of alternative dispute

resolution.

1

Aggregation—whether through class actions or, as is

more likely today, multidistrict litigation—contributes steadily to

disappearing trials and fuels the new paradigm of making and

enforcing a settlement grid.

2

Section 1407, the multidistrict

litigation statute, allows the Judicial Panel on Multidistrict

Litigation (“the Panel”) to transfer federal cases with a common

factual question to the same judge (“the transferee judge”) for

coordinated pretrial proceedings.

3

In theory, after the parties

complete discovery on common issues and the transferee judge

rules on pretrial motions that affect the cases uniformly, the judge

should then remand those cases to their transferor courts for case-

Copyright 2014, by ELIZABETH CHAMBLEE BURCH.

* Associate Professor, University of Georgia School of Law. Many thanks

to the participants at the Louisiana Law Review’s Symposium—“The Rest of the

Story: Resolving the Cases Remanded by the MDL”—for their comments in

discussing these issues.

1. See, e.g., Marc Galanter, The Vanishing Trial: What the Numbers Tell

Us, What They May Mean, 10 DISP. RESOL. MAG. 3 (2004) (“Moreover, the drop

in trials has been recent and steep. In the early part of our period, there was an

increase in federal civil trials, peaking in 1985, when there were 12,529. From

then to now, the number of trials has dropped by more than 60 percent and the

portion of cases disposed of by trial has fallen from 4.7 percent to 1.8 percent.”);

Marc Galanter, The Vanishing Trial: An Examination of Trials and Related

Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004)

(tracing the decline of trials in the United States); Gillian K. Hadfield, Where

Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical

Artifacts in the Changing Disposition of Federal Civil Cases, 1 J. EMPIRICAL

LEGAL STUD. 705 (2004); Hope Viner Samborn, The Vanishing Trial, 88 A.B.A.

J. 24 (2002) (questioning whether the increase of settlements, mediation, and

arbitration will harm the justice system); Martin H. Redish, Summary Judgment

and the Vanishing Trial: Implications of the Litigation Matrix, 57 STAN. L. REV.

1329 (2005) (examining the influence of summary judgment on the trend of

vanishing trials); Thomas J. Stipanowich, ADR and the “Vanishing Trial”: The

Growth and Impact of “Alternative Dispute Resolution,” 1 J. EMPIRICAL LEGAL

STUD. 843 (2004) (analyzing the relationship between ADR and declining trials).

2. See, e.g., RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF

SETTLEMENT 57 (2007).

3. See 28 U.S.C. § 1407 (2012).

400 LOUISIANA LAW REVIEW [Vol. 75

specific discovery and trial.

4

Practice, however, has proven to be

quite different. Multidistrict litigation has frequently been

described as a “black hole”

5

because transfer is typically a one-way

ticket.

6

Indeed, interviews with attorneys who have been heavily

involved in these cases suggest that “the panel has abdicated its

proper role by providing no recourse to remedy or to exit an MDL

black hole.”

7

The numbers lend truth to this proposition. As of 2010, the

Panel remanded only 3.425% of cases to their original districts.

8

That number dwindled to 3.1% in 2012,

9

and to a scant 2.9% in

4. Id. § 1407(a) (“Each action so transferred shall be remanded by the

panel at or before the conclusion of such pretrial proceedings to the district from

which it was transferred unless it shall have been previously terminated . . . .”).

5. See, e.g., In re U.S. Lines, Inc., No. 97-CIV-6727, 1998 WL 382023, at

*7 (S.D.N.Y. July 9, 1998) (explaining appellants’ description of the asbestos

multidistrict litigation as “a black hole” and “the third level of Dante’s inferno”);

Eldon E. Fallon et al., Bellwether Trials in Multidistrict Litigation, 82 TUL. L.

REV. 2323, 2330 (2008) (“Indeed, the strongest criticism of the traditional MDL

process is that the centralized forum can resemble a ‘black hole,’ into which

cases are transferred never to be heard from again.”); John G. Heyburn II &

Francis E. McGovern, Evaluating and Improving the MDL Process, 38

LITIGATION 27, 31 (2012) (“The single most prominent complaint about

multidistrict litigation arises from counsel’s negative experiences in so-called

black hole cases—those that seem not to move at an acceptable pace.”); Eduardo

C. Robreno, The Federal Asbestos Product Liability Multidistrict Litigation

(MDL-875): Black Hole or New Paradigm?, 23 WIDENER L. J. 97, 126 (2013)

(“Ultimately, neither the court nor the parties were ready, willing, or able to

move [asbestos] cases to trial and settlement. This stage of litigation led some

litigants to refer to MDL-875 as a ‘black hole,’ where cases disappeared forever

from the active dockets of the court.”).

6. See, e.g., In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d

1171, 1176 n.9 (D.C. Cir. 1987) (“In practice, it has been reported, most cases

transferred under § 1407 are not remanded.”).

7. Heyburn & McGovern, supra note 5, at 31.

8. Since Congress created the Panel in 1968, the Panel has centralized

349,914 civil actions for pretrial proceedings and, as of September 30, 2010,

transferee courts have terminated 266,264 actions, reassigned 398 actions to

transferor courts within the transferee district, and remanded 11,986 actions for

trial. ADMIN. OFFICE OF THE U.S. COURTS, 2010 ANNUAL REPORT OF THE

DIRECTOR: JUDICIAL BUSINESS OF THE UNITED STATES COURTS (2011),

available at http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/2010

/JudicialBusinespdfversion.pdf, archived at http://perma.cc/98N2-PH7R.

9. “Since its creation in 1968, the Panel has centralized 415,995 civil

actions for pretrial proceedings. By the end of 2012, a total of 13,065 actions

had been remanded for trial, 398 had been reassigned within the transferee

districts, 341,836 had been terminated in the transferee courts, and 60,696 were

pending throughout 54 transferee district courts.” ADMIN. OFFICE OF THE U.S.

COURTS, 2012 ANNUAL REPORT OF THE DIRECTOR: JUDICIAL BUSINESS OF THE

UNITED STATES COURTS (2012), available at http://www.uscourts.gov/Statistics