Remanding Multidistrict Litigation

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

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