THE LONG ARM OF MULTIDISTRICT LITIGATION.

Author:Bradt, Andrew D.
 
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TABLE OF CONTENTS INTRODUCTION 1168 I. PERSONAL JURISDICTION IN THE STATE AND FEDERAL COURTS 1178 A. Personal Jurisdiction Generally 1178 B. Personal Jurisdiction in the Federal Courts 1191 C.Summary 1198 II. PERSONAL JURISDICTION IN MULTIDISTRICT LITIGATION 1199 A. The Roots of the Multidistrict Litigation Statute 1199 B. How Multidistrict Litigation Works in Theory and in practice 1205 C. Personal Jurisdiction in Multidistrict Litigation 1208 III. ASSESSING PERSONAL JURISDICTION IN MULTIDISTRICT LITIGATION 1225 CONCLUSION 1237 "It's not so much a where question, but a who question." --Elizabeth Cabraser, prominent plaintiffs' lawyer, on the selection of multidistrict litigation judges (1) INTRODUCTION

If there is one thing every first-year law student knows a lot about, it is personal jurisdiction--a staple of every introductory Civil Procedure course. But any lLs who have survived the journey from Pennoyer (2) to International Shoe (3) to the Supreme Court's recent flurry of jurisdiction cases (4) might be surprised to learn that in nearly 40 percent of the cases on the federal civil docket, much of what they learned is practically irrelevant. (5)

That is because those cases--as of August 2017, some 125,000 of them--are consolidated as part of a multidistrict litigation, or MDL. (6) MDL, once thought to be an obscure, technical device, has now become the centerpiece of nationwide mass tort litigation in the wake of the decline of the tort class action. (7) Under the MDL statute, 28 U.S.C. [section] 1407, thousands of cases pending around the country that share a common question of fact can be transferred to a single district judge in any district for pretrial proceedings. (8) The judge is chosen by a panel of judges selected by the Chief Justice of the United States called the Judicial Panel on Multidistrict Litigation (JPML). (9) After such pretrial proceedings, the cases are to be remanded to the courts from which they came for trial, (10) but this rarely happens--less than 3 percent of the cases ever exit the MDL court. (11) Instead, most of the cases are either settled or resolved in the MDL proceeding, meaning that, as in most federal litigation, pretrial proceedings are the whole ballgame. (12) While the cases are in the MDL court, the MDL judge has all of the powers that the transferor court would have, including the power to decide dispositive motions, and typically, the litigation is resolved by a mass-settlement agreement reached within the MDL. (13)

Surprisingly, despite the fact that the MDL court does everything that matters in the vast majority of cases transferred to it, it does not need to be a court that would have personal jurisdiction under the rules that would apply if the cases were treated as individual litigations. Instead, according to the JPML and the few courts that have analyzed the problem, an MDL can be located anywhere in the United States, essentially without limitation. (14) As the JPML has held, baldly: "Transfers under Section 1407 are simply not encumbered by considerations of in personam jurisdiction and venue." (15) For their part, federal courts have taken this analysis as a given--those courts that have addressed whether there are any jurisdictional limitations on the MDL forum have characterized such arguments as "frivolous." (16)

In this Article, I hope to demonstrate that questions about the proper jurisdiction of MDL courts are not frivolous with respect to defendants, who usually object, or plaintiffs. In an era in which the Supreme Court has established significant new limits on personal jurisdiction--particularly when plaintiffs are asserting claims arising under state law--and in which MDL proliferates in federal district courts, reexamination of the scope of personal jurisdiction under the MDL statute is both timely and necessary.

Consider the largest MDL currently pending: the litigation involving products liability and personal injury claims against six manufacturers of the allegedly defective medical device, transvaginal mesh. The MDL now includes over 60,000 cases and is consolidated before the Honorable Joseph R. Goodwin in the Southern District of West Virginia, located in Charleston. (17) Under the Supreme Court's personal jurisdiction cases, this is a strange result. (18) None of the defendants in the litigation is incorporated or has its principal place of business in West Virginia, meaning there is no general jurisdiction over any of them in the state. (19) And unless a plaintiff is from West Virginia or had the device implanted there, there is likely no specific jurisdiction in West Virginia in any of these cases, especially after the Court's 2017 decision in Bristol-Myers Squibb Co. v. Superior Court of California. (20)

The case of plaintiff Maria Kafaty is instructive. She lives in Hanford, California, and allegedly suffered injuries arising from the implantation of a vaginal mesh device implanted in a nearby Fresno hospital. (21) She filed a lawsuit--asserting only claims arising under California state law--in the U.S. District Court for the Eastern District of California, in Fresno, against Boston Scientific Corporation. (22) Boston Scientific Corporation is based in Massachusetts, where it designed and manufactured the device that caused Kafaty's injuries. (23) Shortly after Kafaty filed her case, in August 2012, it was transferred to the MDL in West Virginia. (24) Because the steering committee of lawyers selected by the district judge prosecutes the case, her lawyer is not involved. (25) Absent the MDL, the case would never have been sent to West Virginia. But, through the magic of MDL, it was, and it was unlikely to ever return to California, except in the form of a settlement offer. (26) And indeed the case was settled while within the jurisdiction of the MDL court in West Virginia. (27)

How is this possible? The explanations given by the JPML and the federal courts are insufficient and contradictory. For its part, the JPML essentially disclaims that the transferee court is exercising personal jurisdiction at all. (28) In its view, the power of the transferee court is derivative of the power of the transferor court. (29) That is, the JPML says that what matters is whether there is jurisdiction in the transferor court because the MDL statute did not purport to change the rules of personal jurisdiction or venue for any individual case. (30) The few federal courts that have examined this issue have given a different answer. They say that even though Congress has not provided for nationwide service of process, it has the sovereign territorial power to provide for nationwide jurisdiction anywhere within the borders of the United States over any case, and it did so in the MDL statute. (31) As a result, an MDL can be transferred to any district for pretrial proceedings, regardless of the district's connection to the litigation.

These two explanations are not only facially inconsistent, but they are also individually unsatisfying. The JPML's explanation, that jurisdiction in the transferor court suffices, ignores the reality of modern MDL practice, in which all of the action, including potentially judgment, occurs in the transferee court. (32) For instance, in the recent nationwide products liability MDL involving the drug Zoloft, the MDL court granted summary judgment against 333 transferred cases in one fell swoop. (33)

The courts' explanation is both incomplete--because the MDL statute does not provide for nationwide service of process over any claim, and such claims may not be filed directly in the MDL court unless doing so would be allowed by Federal Rule of Civil Procedure 4-and question-begging. (34) That is, even if one were to accept that MDL does provide for an innovative kind of nationwide personal jurisdiction (as opposed to service of process) in any court where an MDL is established, (35) one must then assess whether such a statute is constitutional under the Due Process Clause of the Fifth Amendment (36)--with respect to plaintiffs and defendants.

For if the MDL statute is in fact a nationwide personal jurisdiction statute, then it is a quite grasping one for three reasons. First, unlike most such statutes, which are directed at a discrete intractable problem and one substantive area of law, MDL applies to all claims, whether they arise under federal or state law. (37) Second, unlike every other attempt at nationwide personal jurisdiction, the MDL statute is not mitigated by a more specific venue statute or the opportunity for transfer under 28 U.S.C. [section] 1404(a). (38) The statute's provision that a case be transferred to "any district... for the convenience of parties and witnesses [that] will promote the just and efficient conduct" (39) of the litigation is functionally meaningless when the litigants are scattered throughout the country. (40) Third, there is very limited opportunity for appellate review of the choice of MDL court made by the JPML. Review is available only by extraordinary writ, and reversal of the JPML's choice of forum has never been granted. (41) Ultimately, then, if one concludes that the MDL statute does authorize a kind of national jurisdiction, then it is one that truly tests the outer limits of due process, particularly with respect to garden-variety, state law tort cases. (42)

In this Article, I argue that we should think differently about personal jurisdiction in MDL, and that MDL provides an opportunity to think differently about personal jurisdiction in general. Functionally, the MDL court is exercising a kind of nationwide personal jurisdiction. (43) This expansive jurisdiction cannot, however, be solely justified as a matter of national sovereign territorial power, as the courts suggest, (44) but must be justified as a matter of federal interest. That is, the question should be whether MDL is acceptable because it is consistent with the Fifth Amendment Due Process Clause, because...

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