Symposium Panelist Transcripts

• Pages: 341-397

THE REST OF THE STORY: RESOLVING THE CASES

REMANDED BY THE MDL

A SYMPOSIUM OF THE LOUISIANA LAW REVIEW

MARCH 7, 2014

On March 7, 2014, the Louisiana Law Review hosted a

Symposium entitled “The Rest of the Story: Resolving the Cases

Remanded by the MDL.” Federal multidistrict litigation has become

increasingly prevalent, especially as fewer class actions survive in

federal court. As multidistrict litigation has increased, however,

concerns about the correct roles of discovery and remand in

multidistrict litigation have increased as well. The Symposium thus

featured various panels that discussed these current pressing issues.

Edited and excerpted transcripts from three of these panels are

included within this Issue. The first panel was entitled “Collaboration

of Judges and Attorneys in MDL Case Management,” and was

comprised of Professor Francis McGovern, Judge Eldon Fallon,

Richard Arsenault, and James Irwin. The second panel was entitled

“Effectively Planning for Disaggregating Discovery,” and was

comprised of Judge Lee Rosenthal, Professor Edward Sherman,

Mark Lanier, and James Irwin. The third panel was entitled

“Integrating Aggregated and Disaggregated Discovery Issues,” and

was comprised of Mark Lanier, Judge Lee Rosenthal, Professor

Francis McGovern, Richard Arsenault, and David Jones.

The Louisiana Law Review would like to thank all the speakers

for their participation.

J. Benjamin Aguiñaga

342 LOUISIANA LAW REVIEW [Vol. 75

COLLABORATION OF JUDGES AND ATTORNEYS IN MDL CASE

MANAGEMENT

Professor Francis McGovern, Moderator

Judge Eldon Fallon

Richard Arsenault

James Irwin

Professor McGovern:

I thought it might be helpful to put this program in a little bit

larger context. When we look at litigation—for those of you who

love litigation, who love trying cases in front of juries, who love

being in front of judges, who love being judges, who love writing

briefs for litigation—there are a lot of variables that come into play

in the American litigation system. Certainly the judge is a variable;

it makes a difference who the judge is. The types of lawyers on one

side or the other, the narrative, and the story that we tell—

oftentimes we view litigation as competing stories—those are

variables.

One of the variables that we are focusing on today is procedure—

procedure as a variable—specifically, the way in which the procedure

of the case “proceeds.” Normally procedure is pretty constant, but in

complex litigation, procedure becomes an independent variable.

Now, what do I mean by that?

If you have the normal run-of-the-mill case—one plaintiff,

one defendant—look at the local rules. There’s a complaint.

There’s an answer. There’s a motion to dismiss. There’s a

motion for summary judgment. There’s a pre-trial hearing.

There’s a trial. It’s pretty standard; it’s a constant. We know,

pretty much, what the procedure is going to be in any ordinary

type of case.

What’s different about complex cases—in general—and MDL

cases—in particular—is that, all of a sudden, procedure becomes

an independent variable. The original Manual for Complex

Litigation, which was written by Judge Bill Becker, had waves of

discovery. It was like the Federal Rules of Civil Procedure—wave

number one you did this, wave number two you do that, and wave

number three you do that. It was an absolute constant. We knew

how these cases were going to be managed from a procedural

perspective.

When the Manual for Complex Litigation (Second) was written by

Judge Sam Pointer, he decided that there should be a different

approach—that complex cases really deserve to have a procedure

tailored to the unique aspects of that complex case.

2014] COLLABORATION 343

The Manual for Complex Litigation is basically a menu of

procedural options, tools, and techniques for judges to use, so all of

the procedure that occurs in MDL and in complex litigation is

variable. It depends on who the MDL judge is. It depends on the

nature of the case. Now, in securities cases, it’s pretty constant.

The facts of securities cases, although at the detail level are very

different, generally are pretty much the same. So, we handle

securities cases pretty much the same way. We handle antitrust

cases pretty much the same way. But, when it comes to mass tort

cases, for example, it depends upon the judge. Judge Fallon is

going to handle Vioxx differently from the way Judge Pointer

handled the Silicone Gel Breast Implant cases. It’s a variable.

Compounding the fact that we don’t know exactly in advance

what the procedural moves are going to be is the fact that we now have

an MDL bar, a number of whom are represented here—lawyers who

concentrate on MDL cases. They have expectations about how a judge

is to handle the selection of the plaintiffs’ steering committee, the way

in which a common benefit fund is put together, and Daubert hearings.

But, because the Judicial Panel on Multidistrict Litigation has decided

that it wants to spread out cases demographically and geographically,

we oftentimes have judges trying their first MDL. But, it isn’t the

lawyers’ first rodeo. They are accustomed to a procedure that follows

in a certain pattern, but not necessarily the judge.

So, this conference is part of a series of conferences to study—

both in the literature and for those of you who are lucky enough to

be here—what these variables are. What are the procedural

variables and what are the benefits and the defects of these

procedural variables? The chancellor and the law school have been

kind enough to have this program as a series so that we can

concentrate on different variables, examine them in detail, and

hopefully develop some literature and some best practices out of

this that will assist the MDL bar and the judges in managing

complex and MDL litigation better. That’s sort of the goal.

The topic that we’re talking about today is cutting edge—

disaggregation. We’ve talked a lot about aggregation in any

number of contexts. Now we’re talking about, okay, there’s

another alternative. There is the possibility that you don’t keep

everything together forever; that you do disaggregate certain

activities.

So, the focus of the whole program at LSU is to concentrate on

these procedural variables that are independent, put together

materials about each one, drill a well—as it were—on each one, and

make it available to judges and to lawyers. The general topic that we

have for today has to do with disaggregation.