Symposium Panelist Transcripts

Pages:341-397
 
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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.

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