Symposium Panelist Transcripts

• Pages: 341-397

THE REST OF THE STORY: RESOLVING THE CASES REMANDED BY THE MDL A SYMPOSIUM OF THE L OUISIANA L AW R EVIEW 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. 344 LOUISIANA LAW REVIEW [Vol. 75 We’re going to start with the fundamental concept, and that is collaboration. How do we get the attorneys and the judges in the management process to collaborate sufficiently so that it’s easier for them to make the decisions about these independent variables of procedure? If I may, Judge Fallon, you’ve handled any number of the MDL cases. When you think about appointing the plaintiffs’ steering committee, what goes through your mind as to how to set the case in a management perspective so that it can move smoothly? Judge Fallon: Well, first of all, I appreciate being here and participating with all of these great judges and great lawyers. I sort of feel like the Missouri mule at the Kentucky Derby—nobody expected him to win anything, but they knew he’d learn a lot from the association. So, I hope to learn a lot from this conference. These cases pose a number of challenges. One challenge is the organizational challenge. You’re dealing with large numbers of cases, and you’re dealing with large numbers of attorneys. In Vioxx , I had 50,000 claims. I had 26 states involved. There were 1,000 lawyers in the case. In the Chinese Drywall cases, I have 1,000 defendants. Twenty-sixty thousand claims. I have 1,400 lawyers in that case. You can’t run a case with 1,400 lawyers and everybody wanting to participate. It has to be done in some organized way, and it has to be done by committees. One of the challenges that I face as a transferee judge is appointing the committees. More often than not, the defendant committees are set. They are sort of arranged because a defendant hires a certain number of lawyers, and those lawyers organize themselves into committees. Not always, but usually the defendant committees are organized outside of the judicial sphere. Although, the judge generally appoints a liaison counsel for the defendants— generally someone closer to home. The plaintiff’s committee poses the biggest challenge. You need to have on the plaintiff’s committee lawyers who have some experience and lawyers who have some resources. That’s the fact of the matter. In Vioxx , the plaintiff’s committee had to come out of pocket with $41 million in order to handle that case. That’s what they came out of pocket with. In each of those cases, it cost the plaintiffs’ $1 million per case, and it cost the defendants $2 million per case. Just to handle those cases, and to put on those experts. 2014] COLLABORATION 345 Now, there were bellwether cases. So they pulled out all the bells and whistles. After I picked a jury, I looked into the audience, and I found seven people who mimicked the jury on the plaintiff’s side, and seven people on the defendant’s side who mimicked the jury. The jury consultants would meet with those shadow juries every day, debrief them as to what their impression was of the witnesses, and feed that into the trial lawyers. Professor McGovern: Judge, let me throw you a curve ball. If it costs that much money, not every plaintiff’s lawyer has the kind of money to be able to fund that kind of litigation. There are mechanisms for bringing in lawyers who haven’t necessarily been MDL lawyers before, but their financing may be a little opaque. Should the judge look behind where that financing is coming from? Or is that something that’s uniquely related to each lawyer and his or her own business? Judge Fallon: It can present a problem for the judge, because oftentimes some lawyer who did not make the cut on the committee wants to have input on the committee. So that...