Mary H. Cronin Jesse P. Hyde Edward B. Ruff, III I. INTRODUCTION

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1 MULTIDISTRICT LITIGATION: TECHNICAL AND PRACTICAL CONSIDERATIONS Mary H. Cronin Jesse P. Hyde Edward B. Ruff, III I. INTRODUCTION In 1968, Congress enacted Section 1407 of the Judicial Code to rectify the problem of duplicative discovery and inconsistent decisions on the pretrial matters that resulted when different federal courts handled multiple lawsuits on the same subject matter. 1 Section 1407 authorized creation of the Judicial Panel on Multidistrict Litigation ( Judicial Panel or Panel ) and gave it authority to transfer federal civil cases involving common questions of fact, but pending in different districts, for consolidated or coordinated pretrial proceedings. 2 Historically, the Judicial Panel did not consolidate product liability cases for pretrial discovery. 3 However, during the early 1990s, when federal courts were flooded with asbestos lawsuits, the Judicial Panel had to take action. 4 Though it had previously denied six requests for transfer and consolidation in cases involving asbestos, 5 in 1991, the Judicial Panel transferred 25,000 asbestos lawsuits for consolidation in order to manage that litigation. 6 Since that time, the Judicial Panel has transferred and consolidated several mass tort product liability lawsuits including cases involving Vioxx, 7 Agent Orange, 8 Stand n Seal, 9 diet drugs 10 and peanut butter. 11 The Judicial Panel is comprised of seven judges from different circuit courts who are appointed by the Chief Justice of the Supreme Court. 12 No two members of the Panel may be Submitted by the authors on behalf of the FDCC Class Action and Multidistrict Litigation section. 1 Pub. L. No , 82 Stat. 109 (1968); Mark Herrmann & Pearson Bownas, An Uncommon Focus on Common Questions : Two Problems with the Judicial Panel on Multidistrict Litigation s Treatment of the One or More Common Questions of Fact Requirement for Centralization, 82 TUL. L. REV. 2297, (2008) (hereinafter Questions of Fact ). 2 Wilson W. Herndon & Ernest R. Higginbotham, Complex Multidistrict Litigation An Overview of 28 U.S.C.A. 1407, 31 BAYLOR L. REV. 33, (1979). 3 David F. Herr, Handling Cases Before the Judicial Panel on Multidistrict Litigation, MULTIDISTRICT LITIG. MANUAL 5:14 n. 36 (2009). In this article, product liability cases refer to cases involving personal injuries, in contrast to the multidistrict litigation (MDL) type of suit involving only economic damages under warranty and statutory consumer fraud theories stemming from a product s propensity to fail. See Mark Herrmann & Pearson Bownas, Making Book on the MDL Panel: Will It Centralize Your Products Liability Cases?, 8 BNA CLASS ACTION LITIG. REP. 110, n.4 (explaining this distinction) (hereinafter Making Book ). 4 Herr, supra note 3, at 5.14 n.3. 5 Id. at n Id. 7 In re Vioxx Mktg. Sales Practices & Prods. Liab., 416 F. Supp. 2d 1354, 1355 (J.P.M.L. 2006). 8 In re Agent Orange Prod. Liab. Litig. MDL No. 381, 818 F.2d 145, 152 (2d Cir. 1987). 9 In re Stand 'n Seal Prods., 469 F. Supp. 2d 1351, 1402 (J.P.M.L. 2007). 10 In re Briscoe, 448 F.3d 201, 207 (J.P.M.L. 2006). 11 In re Conagra Peanut Butter Prods. Liab. Litig., 559 F. Supp. 2d 1401, 1402 (J.P.M.L. 2008) U.S.C. 1407(d) (2006). The current Chairman of the Judicial Panel is the Honorable John G. Heyburn II from the United States District Court for the Western District of Kentucky. The other members include the Honorable Kathryn H. Vratil from the District of Kansas, the Honorable Robert L. Miller Jr. from the Northern District of Indiana, the Honorable David R. Hansen from the 8th Circuit Court of Appeals, the Honorable W. Royal Furgeson,

2 from the same judicial circuit. 13 All actions of the Panel require the concurrence of four members. 14 The Judicial Panel may order consolidation by its own initiative or through a petition by a party. 15 It can only consolidate federal court cases. Parties in cases pending in state court at the same time may coordinate discovery and pretrial matters in conjunction with the federal courts, but are not required to do so. 16 When civil actions brought in federal court that involve common questions of fact with actions previously transferred to a multidistrict litigation docket (so called tag-along actions ) are brought to the Judicial Panel s attention, the Clerk of Judicial Panel issues a conditional transfer order ( CTO ). If no objection to the CTO is filed, the CTO becomes final, and the tag-along actions are also transferred. If an objection is filed, it is heard by the Judicial Panel. When deciding whether to order transfer of the tag-along actions, the Panel applies the standards that are applicable to motions to consolidate under Section Upon completion of pretrial proceedings, the Judicial Panel is to remand the cases to the districts from which they were transferred. 18 However, remand is not required if a case terminates while consolidated. 19 Additionally, cases may be tried in the transferee court by consent of the parties or if a motion for a change in venue to the transferee court is granted after remand occurs. 20 This Article discusses the standards the Judicial Panel applies when determining whether to transfer cases to multidistrict litigation. It focuses primarily on product liability cases. Part II provides an overview of the standards applied to determine if the Judicial Panel should order a transfer of cases for consolidated or coordinated pretrial proceedings. Part III briefly sets forth factors used in choosing the transferee court. After explaining the technical, statutory requirements, Part IV sets forth practical considerations regarding coordination and consolidation of multidistrict litigation actions. II. STANDARDS FOR DETERMINING IF TRANSFER TO MULTIDISTRICT LITIGATION IS APPROPRIATE The standards for determining whether the Judicial Panel should order a transfer of cases for consolidated or coordinated pretrial proceedings are set forth in section 1407(a). That section specifies in pertinent part: Jr. from the Northern District of Texas, and the Honorable Frank C. Damrell, Jr. from the Eastern District of California. There is currently one vacant seat on the panel. (last visited September 11, 2009) (d). 14 Id (c)(i), (c)(ii). The Panel invokes its authority to centralize actions on its own initiative sparingly. John G. Heyburn II, Symposium: The Problem of Multidistrict Litigation: A View from the Panel: Part of the Solution. 82 TUL. L. REV. 2225, 2231 n. 35. (2008) (a); see Lori J. Parker, Causes of Action Involving Claims Transferred to Multidistrict Litigation, 23 COA2d 185, 16, 22 (2009). 17 Herr, supra note 3, at 8:3 (2009) (a). 19 Id. 20 Courtney E. Silver, Note: Procedural Hassles in Multidistrict Litigation: A Call for Reform of 28 U.S.C and the Lexecon Result, 70 OHIO ST. L.J. 455, (2009).

3 When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. 21 Two of the prerequisites for transfer are obvious and require no commentary: the cases must be civil actions and the actions must be pending in different jurisdictions. The other three standards are discussed below. They are (1) whether transfer will promote efficient justice, (2) whether the cases involve common questions of fact, and (3) whether transfer will promote the convenience of the parties and witnesses. Even though only five prerequisites appear in Section 1407 and only three of those need any extensive analysis, the prerequisites can be boiled down to a basic question or expanded to entail consideration of a great deal of information. As Judge Weigel pointed out in an early case, 22 [t]he basic question before the Panel in each proceeding looking to coordinated or consolidated pretrial is... whether the objectives of the statute are sufficiently served to justify the necessary inconveniences of transfer and remand. Many factors are relevant to the answer. Some will be applicable to all proceedings under the statute; some will not. Some will count heavily in some proceedings; lightly in others. It will be useful- for illustration, if nothing more- to articulate some of these considerations. How many common questions of fact are there? What is their nature? How many cases are presently and prospectively involved? What is the geographical location of the districts in which the cases pend? If it is anticipated that further cases will be filed, in what districts? Who are the principal witnesses in the cases and where do they reside? What detriment, financial or otherwise, will be imposed upon any of the parties by ordering transfer? Will transfer result in a substantial saving of duplicative work? Will transfer usefully avoid conflicting rulings in the pretrial proceedings of the cases involved? Can many of the advantages of transfer be worked out by cooperation among counsel without transfer? Are pretrial proceedings already far along in any one or more of the cases? Will transfer hasten or delay progress in the cases? What is the availability of a judge or judges in the proposed transferee court or courts? Will the advantages of transfer overcome the normal desirability of having the same judge who conducts the trial also conduct pretrial proceedings? Will transfer impede or promote the prospect of settlements? Will transfer serve any ulterior motive of any party or parties, such as forum shopping? If class actions are involved, will (a). 22 As noted by one commentator, most of the Panel s early decisions were published to provide guidance to litigants. However, now fewer decisions are published, and the published cases tend involve a large number of victims or new developments. Therefore, to find in-depth treatment of 1407 issues, rulings from the Panel s formative years must be consulted. Blake M. Rhodes, The Judicial Panel on Multidistrict Litigation: Time for Rethinking, 140 U. PA. L. REV. 711, 718 (1991).

4 transfer make for complexity or for simplification? Will transfer unjustly delay or deny any party's right to provisional remedies such as injunctive relief? What is the status and possible effect of any appeals pending in any of the cases? Will transfer operate to eliminate or avoid an undesirable multiplicity of appeals on similar issues? 23 More recently, the Chair of the Judicial Panel on Multidistrict Litigation, Judge John Heyburn, stated that the Panel considers only two issues when considering 1407 transfer motions: First, the Panel considers whether common questions of fact among several pending civil actions exist such that centralization of those actions in a single district will further the convenience of the parties and witnesses and promote the just and efficient conduct of the actions. Second, the Panel considers which federal district and judge are best situated to handle the transferred matters. In deciding those issues, the Panel exercises its considerable and largely unfettered discretion within the unique circumstances that each motion presents. 24 Further, according to Judge Heyburn, [m]ore often than not, the proposed dockets meet the 1407 criteria and the Panel orders centralization. 25 However, this does not mean that the Panel is somehow predisposed in favor of centralization. The opposite may be true. 26 Rather, Judge Heyburn attributes this phenomenon to the clarity of the standard that the Panel has applied faithfully and consistently over the years [and] practitioners who have done their homework [and] refrain from bring unfounded motions. 27 A. Promoting Efficient Justice The most important goal in determining whether a transfer is warranted is whether consolidation or coordination (centralization) will promote justice and efficiency. As stated by the Senate: The main purpose of transfer for consolidation or coordination of pretrial proceedings is to promote the ends of efficient justice. 28 The House Report s wording of this admonition is even stronger: It is expected that such transfer is to be ordered only where significant economy and efficiency in judicial administration may be obtained. 29 In a recent article, Judge Heyburn suggested that experienced counsel use oral arguments regarding 1407 motions to emphasize their substantive concerns about why centralization under 1407 will either promote or impede the just and efficient resolution of their case or the litigation as a whole 30 stating that [i]n a given docket, such arguments can be decisive In re Concrete Pipe, 302 F. Supp. 244, (1969) (Weigel, J. concurring). 24 Heyburn, supra note 15, at Id. at Id. 27 Id. 28 S. REP. NO. 454, (1967). 29 H. REP. NO (1968), as reprinted in 1968 U.S.C.C.A.N. 1898, Heyburn, supra note 15, at Id.

5 Centralization is considered just and efficient if it will eliminate duplicative discovery, prevent inconsistent pretrial rulings and conserve the resources of the parties, their counsel and the judiciary. 32 The Panel is aware that a transfer decision may prejudice a party or claim, but not others, and therefore it weighs the benefits of centralization against the possibility of such unfairness while being mindful of the fact that the Panel s purpose is to benefit the judicial system and litigants as a whole, not any particular party. 33 To achieve that balance and evaluate the potential benefits of centralization, the following considerations are important to the Panel: (1) The degree of similarity of legitimate discovery needs in all of the proposed transferee actions; (2) The degree of factual commonality (or similarity of facts at issue) of the claims and cases; (3) The number of actions in a proposed docket and the number of common parties; 34 and (4) The relative state of pretrial proceedings in various actions. 35 Actions that are in the earlier pretrial stages typically benefit the most from centralization. Even when cases that are candidates for transfer are at different stages of discovery, transfer can be efficient. Coordinating recently filed actions with more advanced actions, in some situations, may provide enough benefits to the parties as a whole that they outweigh the burden of any delay for the older cases. 36 And, as the Judicial Panel suggested in In re Multi-Piece Rim Products Liability Litigation, [t]he transferee judge, of course, has the authority to group the pretrial proceedings on different discovery tracks according to the common factual issues or according to each defendant if necessary for the just and efficient conduct of the litigation, and to schedule any discovery unique to particular parties, actions or claims to proceed in separate discovery tracks concurrently with the common discovery, thus enhancing the efficient processing of all aspects of the litigation. Moreover, no party need participate in pretrial proceedings unrelated to that party's interests. 37 However, an action may be excluded from the transfer order if discovery has been completed or if discovery relating to all factual issues that action has in common with the other actions has been completed. 38 Once pretrial proceedings have concluded or near completion, consolidation 32 In re Advance Inv. Mgmt., 254 F. Supp. 2d 1377, 1379 (2003). 33 Heyburn, supra note 15, at Id. at Although the efficiencies from centralization are most likely where there are a number of cases in the proposed docket and many common parties, a small number of cases all seeking class certification in different districts could potentially benefit from transfer to a single court. Id. at Also, the Judicial Panel will consider both the cases that are pending at the time of the petition for consolidation and the potential for tag-along actions. See Heyburn, supra note 15, at 2239 n.69. The term tag-along actions refers to actions that are not currently pending, but will either be filed in federal court or removed to federal court, which will be consolidated with the cases currently pending. Rhodes, supra note 22, at 717 n Heyburn, supra note 15, at Id F. Supp 969, 974 (J.P.M.L 1979)(citations omitted). 38 Id.

6 no longer serves a just or efficient purpose. In contrast, if a case is transferred (or the record is not sufficient to support exclusion of the action), the Panel will defer to the trial judge regarding when cases should be separated and remanded. As the Panel summarized in the Multi-Piece Rim cases, [i]f and when the transferee judge determines that any action or claim is, in fact, ready for trial, or otherwise ready for remand because the common pretrial proceedings pertaining to that action or claim have been completed and the action or claim would no longer benefit from inclusion in the coordinated or consolidated pretrial proceedings, the transferee judge may suggest to the Panel that the Panel remand the action or claim to its transferor district. 39 According to Rule 7.6 of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, 40 remand based on a suggestion of the transferee court is much more likely to be successful than one sought based solely on the motion of a party. 41 B. Common Questions of Fact Cases pending in different districts will not be transferred to multidistrict litigation unless they have at least one question of fact in common. 42 While having at least one common question of fact is a threshold requirement for transferring cases, the number of cases proposed for transfer, the number of common questions of fact, the complexity of the common questions of fact and the complexity of the cases all factor into whether a transfer will promote efficient justice and the convenience of the parties. According to the Senate Report, [i]f only one question of fact is common to two or three cases pending in different districts there probably will be no order for transfer, since it is doubtful that transfer would enhance the convenience of the parties and witnesses, or promote judicial efficiency. It is possible, however, that a few exceptional cases may share unusually complex questions of fact, or that many complex cases may share a few questions of fact. In either of these instances substantial benefit may accrue to courts and litigants through consolidated or coordinated pretrial proceedings. 43 According to the current Chair of the Judicial Panel, Judge John Heyburn, [t]he greater the factual commonality of the cases, the more likely it is that centralization will benefit the involved parties and the system as a whole. 44 Common questions of fact must actually be in dispute for cases to be consolidated. 45 In product liability cases, common questions of fact may relate to whether the product involved a 39 Id. at F.R.D. 425, (2001). 41 See Rules of Procedure of the Judicial Panel on Multidistrict Litigation 7.6(c), (d), 199 F.R.D. 425, 437 (2001). Rule 7.6(d)(i)(A) states, The Panel is reluctant to order remand absent a suggestion of remand from the transferee district court. If counsel has not requested that the transferee district court remand, this decision must be explained in an affidavit accompanying the motion to remand. Id (a). 43 S. REP. NO , at 4-5 (1967). 44 Heyburn, supra note 15, at 2236.

7 design defect or whether the cases involved inadequate warnings. If a defendant admits that the product involved a design defect, then the Judicial Panel will not consider the design defect to be in dispute in deciding whether to allow consolidation. An article published in 2008 by Mark Herrmann and Pearson Bownas provides a thorough analysis of the common question of fact requirement. The authors state that even though having factual questions in common is a threshold requirement for transfer, it rarely was the basis for denying a motion for transfer in early decisions. 46 The authors note that [t]he Panel first denied a motion to transfer products liability cases for lack of common factual questions in They also point out that the Panel denies consolidation when the motion involves only two or three cases that have only a few common fact questions and the questions are not sufficiently complex to warrant centralization. 48 The authors also discuss cases where the Panel seems to suggest that consolidation is appropriate where common questions of fact predominate over unique questions despite the fact that the Panel has expressly rejected predominance as a requirement for centralization. 49 They express concern that if Panel decisions suggest that centralization is appropriate because common questions of fact predominate, those decisions might be misused by plaintiffs lawyers or courts when addressing the criterion for class certification in Rule 23(b)(3), 50 which specifies that questions of law or fact common to class members [must] predominate over any questions affecting only individual members. 51 Despite this potential problem, the authors point out that with respect to product liability cases in which the parties seek recovery for personal injuries, the Panel centralizes the cases with great frequency even though those types of cases are almost never certified for class treatment. 52 In the context of most products liability lawsuits, it is possible to argue for consolidation, but 45 Herr, supra note 3, at Herndon & Higginbotham, supra note 2, at Questions of Fact, supra note 1, at n.68 (citing In re Asbestos & Asbestos Insulation Material Prods. Liabl. Litig, 431 F. Supp. 906, 910 (J.P.M.L. 1977)). In In re Asbestos, the Panel acknowledged that there were questions of fact common to all the actions that related to the state of scientific and medical knowledge at different points in time concerning the risks of exposure to asbestos. Id. However, individual actions (or groups of actions in a single district) had unique factual questions that outweighed the common questions. Furthermore, many of the actions were in advanced pretrial stages or close trial. Finally, although this fact was not determinative, the parties were virtually unanimous in their opposition to transfer. Id. 48 Questions of Fact, supra note 1, at n Id. at Moreover, [t]he American Law Institute has recommended rejection of a proposal to amend Section 1407 to include a more restrictive standard that would require a predominance of common questions test. The ALI stated: A more restrictive standard, such as predominance of common questions, is less desirable because situations might arise in which substantial benefits could be gained by transfer for consolidation even when only a single common factual question is present because it would avoid the duplication of effort that otherwise would result in resolving that issue in separate suits. Desmond T. Barry, Jr., A Practical Guide to the Ins and Outs of Multidistrict Litigation, 64 DEF. COUNSEL J. 58, 60 (1997)( quoting American Law Inst., Complex Litigation: Statutory Recommendations and Analysis 43 (1994)). 50 Questions of Fact, supra note 1, at FED. R. CIV. P. 23(b)(3). 52 Questions of Fact, supra note 1, at 2310.

8 oppose class certification, when there may be a common question of fact regarding a design defect, but a person s injury resulting from exposure to that product is not typical of the class. 53 C. Convenience of the Parties and Witnesses A transfer to multidistrict litigation also requires a determination by the Panel that it will be for the convenience of [the] parties and witnesses. 54 Early on, commentators reported that the Panel did not view this requirement as a determinative standard because inconvenience is inherent in transferring actions for coordinated or consolidated pretrial proceedings. 55 Thus, inconvenience was systematically rejected as a reason to deny a section 1407 motion. 56 More recently, however, the Panel denied a motion for centralization in a case involving two actions pending in adjacent jurisdictions. One reason given was that the transfer would not serve the convenience of the parties. 57 When cases are national in scope, the Judicial Panel is more likely to find that consolidation will promote the convenience of the parties and witnesses. 58 The Judicial Panel will also consider whether other discovery methods are available to promote the convenience of the parties and witnesses. 59 Overall, there is a sense from the Panel s decisions over the years that judicial convenience and economy trump the interest and convenience of the parties. 60 But, as one commentator explained, if a group perspective is used in weighing the convenience of the parties and witnesses, then the Panel is applying this section 1407 requirement even though transfer may inconvenience individual litigants. 61 All of these sentiments may be correct, even though they appear to be somewhat inconsistent. As the Chair of the Panel explained fairly recently, As a general rule, the Panel considers that eliminating duplicate discovery in similar cases, avoiding conflicting judicial rulings, and conserving valuable judicial resources are sound reasons for centralizing pretrial proceedings with respect to a given group of actions. Every transfer decision has the potential to prejudice a particular party or claim among the many. In difficult cases, the Panel will weigh the likely benefits of centralization against the possibility of such resulting unfairness. The Panel's purpose is to benefit the judicial system and the litigants as a whole, not any particular party See, e.g., Grovatt v. St. Jude Med., Inc., 522 F.3d 836, (8 th Cir. 2008). Counsel should, of course, use caution when drafting a motion for transfer and avoid using language that could inadvertently be used as a basis for ordering class certification (a). 55 Herndon & Higginbotham, supra note 2, at Id. 57 In re AT&T Broadbrand Telecomm. Serv. Litig., 237 F. Supp. 2d 1380, 1380 (J.P.M.L. 2002). 58 See In re Gov t Auto Fleet Sales, 328 F. Supp. 218, 218, 220 (J.P.M.L. 1971). 59 See In re Deep S. Crane & Rigging Co., No , 2008 Tex. LEXIS 1143, at *4-*5 (Tex. Dec. 9, 2008). 60 See Stanley J. Levy, Complex Multidistrict Litigation and the Federal Courts, 40 FORDHAM L. REV. 41, 51 (1971); Herndon & Higginbotham, supra note 2, at 44 ( The overall savings are viewed as outweighing any increased expense to a particular litigant..). 61 Rhodes, supra note 22, at Heyburn, supra note 15, at (footnotes omitted).

9 In products liability cases, the defendant s position on whether transfer promotes the convenience of the parties and witnesses may be given more weight than the plaintiff s position. According to one review of Panel decisions since 1992, [o]f the 12 denials of motions to transfer products liability actions decided since the beginning of 1992, 10 were plaintiffs' motions that the defendants opposed. By contrast, when the defendant moved for transfer, or either supported or did not oppose a plaintiff's motion for transfer, the panel was much more likely to transfer the cases, even if few actions were involved. The defendant's support of the transfer motion appears to play a particularly strong role when the number of actions subject to transfer is low. Of the 36 transfer motions involving five or fewer products liability actions since the beginning of 1992, four were denied. Three of those four were plaintiffs' motions that defendants opposed. Of the 32 such motions that were granted, 28 were either defendants' motions or plaintiffs' motions that defendants supported (or did not oppose). When a plaintiff's motion to transfer is granted over a defendant's objection, it is usually because factors strongly favoring transfer, such as many pending actions, are present. Since 1992, there have been 37 plaintiffs' products liability transfer motions opposed (or at least not supported) by at least one primary defendant. 10 were denied. Of the 27 that were granted, 21 involved seven or more pending actions. 63 The authors explain that the defendant s view of convenience is paramount because [t]he defendant is likely to have more common witnesses (in any individual products liability case, there is likely just one injured plaintiff, but many defense corporate witnesses), and because the defendant's convenience is typically more at stake (in any individual products liability case, the plaintiff will depose the defense witnesses and be deposed just once; only the defendant risks multiple depositions of its witnesses on the same topic absent coordination). 64 III. FACTORS IN DETERMINING THE TRANSFEREE COURT AND JUDGE Once the Judicial Panel deems that consolidation is appropriate, it will consider where the cases should be transferred. 65 Section 1407 does not specify any criteria that the Judicial Panel must follow when designating the transferee court or the transferee judge. 66 The transferee judge can be from a district that is not the one to which the cases will be transferred. 67 Where to transfer the cases is more frequently argued by counsel than whether to consolidate the cases Making Book, supra note 3, at Id. at (b). 66 Id. 67 Id. 68 Levy, supra note 60, at 56; Herndon & Higginbotham, supra note 2, at 46; Rhodes, supra note 22, at 721.

10 But, the Panel likes to accommodate the parties in selecting an appropriate transferee district [and] if the parties or a group of them can make a joint recommendation, the Panel may be favorably impressed. 69 Over the years, various lists of factors that are commonly used by the Panel when choosing the location of the transferee district have been published. 70 A representative list is as follows: (1) Convenience of the parties; 71 (2) Choice of a substantial number of the parties; 72 (3) Location of relevant documents; 73 (4) Location of potential witnesses; 74 (5) Location of parties or the principal place of business of the parties; 75 (6) Where the greatest number of cases are pending 76 or the number of involved actions pending in a district; 77 (7) Whether discovery is at an advanced stage in one of the districts; 78 (8) Where the greatest opportunity for state/federal coordination may exist; 79 (9) The center of gravity of the litigation, if obvious; 80 (10) Whether the district is centrally located; 81 and (11) Whether the district is an accessible location for nationwide litigation. 82 Each factor must be evaluated with reference to all of the other factors and with reference to the cases proposed for the multidistrict litigation docket. 83 The ideal transferee court, according to [early Panel decisions] would be a district where many of the common facts occurred, where a number of cases are already pending, where some discovery has taken place, where a single judge is already familiar with the litigation, and where the judges and the court are not burdened by calendar problems Heyburn, supra note 15, at The Panel has indicated that sometimes a particular location may be of greater importance because of the nature of discovery and the concentration of witnesses. But, location may be a lesser consideration if the litigation does not have a geographical focal point. Id. at Presumably, if location is not particularly important then the caseload of the possible transferee courts or judges will factor more heavily in the Panel s forum choice. See Herndon & Higginbotham, supra note 2, at Barry, supra note 49, at 61; Rhodes, supra note 22, at Herndon & Higginbotham, supra note 2, at Id; Barry, supra note 49, at 61; Rhodes, supra note 22, at 722; Mark Herrmann, 24 LITIGATION 43, 44 (1998). 74 Herndon & Higginbotham, supra note 2, at 47; Barry, supra note 49, at 61; Rhodes, supra note 22, at 722; Herrmann, supra note 73, at Rhodes, supra note 22, at Barry, supra note 49, at 61; Herrmann, supra note 73, at 44; Levy, supra note 60, at Herndon & Higginbotham, supra note 2, at 47; Rhodes, supra note 22, at Herrmann, supra note 73, at 44; Herndon & Higginbotham, supra note 2, at 47; Rhodes, supra note 22, at Herrmann, supra note 73, at Barry, supra note 49, at 62; Herndon & Higginbotham, supra note 2, at Barry, supra note 49, at 62; Herndon & Higginbotham, supra note 2, at 47; Levy, supra note 60, at Barry, supra note 49, at See Heyburn, supra note 15, at Levy, supra note 60, at (citing In re IBM, 302 F. Supp. 796 (J.P.M.L. 1969) ; In re Plumbing Fixture Cases, 295 F. Supp. 33 (J.P.M.L. 1968)).

11 Choosing the best transferee court and the best judge to serve as transferee judge are closely related. 85 Factors that are specifically related to choosing the judge are as follows: (1) Whether there should be one judge or two; 86 (2) Whether there is a judge in the suggested transferee district who is familiar with the case 87 or a judge who has experience with one or more actions; 88 (3) Whether a member of the Judicial Panel should be chosen; 89 (4) Whether there is a judge who has previous experience managing consolidated cases; 90 and (5) Whether there is a judge designated to sit specifically in the transferee district on an intracircuit or intercircuit assignment. 91 Once the Panel focuses on a particular judge, it will also consider whether the judge is willing to accept responsibility for the litigation; whether the judge s workload will permit him or her to handle the case; 92 and whether the chief judge of the district will consent to the transfer of additional cases to the district. 93 According to the current Chair of the Panel, [t]he ideal transferee judge is one with some existing knowledge of one of the cases to be centralized and who may already have some experience with complex cases, if the new docket appears to require it. For instance, a judge already assigned many of the transferee cases would be a likely choice, unless he or she is unable to devote the time to the combined transferee cases. On the other hand, the Panel may opt for an available experienced judge even though he or she does not sit in a district where one or more of the constituent actions were originally brought. 94 Finally, the Panel is alert to situations where a party attempts to misuse section 1407 to litigate in a forum where the party could not get jurisdiction over another party. For example, in In re Truck Accident Near Alamagordo, New Mexico, on June 18, 1969, 95 the plaintiffs filed suit against the manufacturer of the truck, the seller of the truck, and the manufacturer and seller of the trailer in Oklahoma. The suit against the manufacturer and seller of the trailer was dismissed for lack of personal jurisdiction. Then, the plaintiffs sued the same three defendants in Texas. The manufacturer of the truck and the seller of the truck moved for a change of venue to Oklahoma. The plaintiffs moved to transfer the cases to Oklahoma for consolidated pretrial proceedings under section Despite the duplication of discovery that was readily apparent 85 Heyburn, supra note 15, at Barry, supra note 49, at Id; Levy, supra note 60, at Herndon & Higginbotham, supra note 2, at Barry, supra note 49, at Id. 91 Id. 92 The Panel considers both the number of cases on the judge s docket as well as whether the judge is handling complex and time consuming actions. Telephone conferences with transferor and transferee judges are not uncommon. Heyburn, supra note 15, at Levy, supra note 60, at Heyburn, supra note 15, at 2240 (footnotes omitted) F. Supp. 732 (J.P.M.L. 1975).

12 since all of the cases had common questions of fact arising out of the same accident, the motion was denied because this problem could be avoided by cooperative efforts of the parties. Moreover, the Panel sensed that the dominant reason that the plaintiffs sought transfer to Oklahoma was because they could not get personal jurisdiction there over the defendant who manufactured and sold the trailer. According to the Panel, it appeared that plaintiffs ulterior motive for seeking transfer amount[ed] to an attempted misuse of the statute. 96 According to a recent statement by the Chair of the Judicial Panel, if a party or parties attempt to use the multidistrict litigation process for an illicit substantive or procedural purpose, the Panel will act to avert or deflect [such] attempts to game the system. 97 IV. PRACTICAL CONSIDERATIONS REGARDING COORDINATION AND CONSOLIDATION OF MULTIDISTRICT LITIGATION ACTIONS As the reader is undoubtedly aware, many of the technical requirements for transferring cases for centralized pretrial proceedings involve practical considerations that the Judicial Panel considers when deciding whether to grant a Section 1407 motion. For example, whether transfer is convenient for the parties and witnesses is both a technical requirement and a practical consideration. In this Part, we expand upon some of the practical considerations that have already been mentioned and add some others. The primary motivation for seeking centralization of multidistrict litigation is to save time and money by avoiding repetitive discovery and repetitive briefing of dispositive and class certification motions. 98 Since a single transferee judge 99 decides all pretrial disputes, not just those relating to discovery, consistent rulings occur and repetitive appeals of decisions on pretrial motions are avoided. Regarding repetitive discovery, duplicate discovery demands and requests are avoided. Interrogatories have to be answered only once. Witnesses have to be prepared and produced only once for depositions. A document depository is typically created so that numerous sets of documents for each case do not have to be prepared. Global settlement negotiations may replace individual settlement negotiations, and there is no need to prepare individual trial plans. 100 However, in certain cases these savings of time and money may be less than anticipated. When cases are transferred for a multidistrict litigation proceeding, discovery may be broadened into less relevant and more tangential areas 101 reducing the anticipated cost savings for the defense. One factor that sometimes leads to broadening discovery relates to how plaintiffs attorneys fees are computed if there is a settlement. If attorneys fees are based on individual 96 Id. at Heyburn, supra note 15, at Making Book, supra note 3, at n The Panel may appoint more than one judge, if necessary. Barry, supra note 49, at See In re Vioxx Prods. Liab. Litig., MDL No. 1657, 2009 WL at *11 (E.D. La. 2009). 101 Herrmann, supra note 73, at As Mr. Herrmann warns, [u]ltimately, clients must be advised that an MDL proceeding will dramatically reduce the burden on corporate officers and directors because they will not be deposed repeatedly for case in the federal system. The MDL proceeding, however, is likely to disrupt the lives of suppliers, distributors, researchers, and others who may be dragged into the fray. The cost saving in the discovery process may be negligible. Id. at 46.

13 contingent fee contracts, reasonableness may depend upon hours spent working on the case. This, in turn, can create an incentive to replace the duplicative discovery that is eliminated in a multidistrict litigation proceeding with additional, broader discovery. 102 However, this tendency may be less common now due to how transferee judges determine what percentage is reasonable for contingent fees. For example, in In re Vioxx Products Liability Litigation, 103 the transferee court capped plaintiffs attorneys contingent fees at 32%. The court reasoned that multidistrict litigation created economies of scale that benefitted attorneys greatly and that the justice mandate of the MDL statute requires that the claimants receive a similar benefit, in the form of reasonable attorneys fees. 104 When it set the cap, the court weighed a number of factors including past fee caps implemented by MDL courts facing global settlement agreements. 105 It also considered state law caps on contingent fee agreements in both products liability actions and other cases [and] the unique contours of the Vioxx litigation. 106 Moreover, the cap applies to all attorneys unless an attorney can produce evidence showing that a rare circumstance exists that makes departure from the cap appropriate. 107 Also, the attorney s client is entitled to present contrary evidence at the hearing. 108 Given the court s authority to order a capped, uniform contingent fee and the uphill battle an individual attorney faces when trying to increase it, plaintiffs attorneys will be less likely to replace duplicative discovery with broader, less relevant discovery. As noted by the court in Vioxx, certain attorneys may have expended a great deal of time and effort on behalf of their clients [h]owever the many economies of scale benefitted attorneys across the board 109 justifying the same cap for all attorneys. But, according to the court, many plaintiffs attorneys were able to simply wait while a settlement was negotiated and then do no more than enroll their clients in the settlement and monitor their progress through the claims valuation process. 110 It certainly seems as though this court, at least, gives almost no weight to individual attorneys efforts in contrast to the overall benefits produced by an efficient multidistrict litigation process when setting a cap. 111 It seems highly unlikely that an attorney who pursues less relevant discovery to replace hours that cannot be spent on duplicating discovery will be rewarded with an increased contingent fee cap if there is a global settlement. Other factors that may trump the overall cost savings a multidistrict litigation proceeding should produce are inconvenience for a particular party or witness and the initial uncertainty regarding where the cases might be transferred and which judge will be assigned. As mentioned previously, judicial convenience may sometimes trump the convenience of a party 112 because as 102 Id. at MDL No. 1657, 2009 WL (E.D.La. 2009). 104 Id. at * Id. at * Id. 107 Id. at * Id. 109 Id. at * Id. at * In fact, the court stated the following in a footnote: The Court is mindful that this process required careful monitoring of the Claim s Administrator s website and in some cases demanded the provision of additional medical records on demand. However, in the vase [stet] majority of cases, the increased efficiency provided by the MDL structure far outweighed the work involved in this process. Id. at n See supra text accompanying notes

14 the Chair of the Panel has stated the Panel s purpose is to benefit the judicial system and litigants as a whole, not any particular party. 113 Predicting where cases will be transferred and who the transferee judge will be is almost always impossible. 114 One reason is because there are so many factors taken into account by the Panel when making these decisions. Another reason is that counsel will not be privy to some of the information used by the Panel when making its selections, such as whether a particular judge is willing to accept responsibility for the litigation, and whether the chief judge of a district will consent to a transfer of additional cases to the district. 115 Uncertainty regarding where the cases will be transferred may also implicate uncertainty regarding controlling law. Federal issues are decided according to the law of the circuit in which the transferee court is located. 116 This uncertainty is extra problematic since counsel must decide whether to move to transfer or oppose transfer not knowing whether the law of the eventual transferee court will be more favorable, less favorable, or the same as the law in the transferor court. 117 Filing a motion to transfer for consolidated or coordinated proceedings necessarily involves timing and logistical considerations. Counsel must anticipate a tight briefing schedule 118 prior to a two to five minute oral argument on the transfer motion. 119 Oral arguments are only scheduled every two months and the location changes. 120 Delays can occur when the transferor court decides to stay proceedings until the Panel decides whether to grant the motion. 121 If the motion is granted, additional delays may occur while the transferee court organizes the files and convenes the parties. 122 The delay may be beneficial, detrimental or neutral if a state court case is tried before the cases involved in the multidistrict litigation proceeding. 123 But, delay can be beneficial if time is needed to organize a defense, negotiate a global settlement, or file a bankruptcy proceeding. 124 Once cases are consolidated for pretrial proceedings, choice of law questions may become more complex and engender other delays. When considering questions of state law, however, the transferee court must apply the state law that would have applied to the individual cases had they not been transferred for consolidation. 125 This may be the basis for postponing certain rulings until the cases are returned to the transferor courts for trial. 126 Even if federal issues are involved and therefore the law of the circuit where the transferee court is located controls, complicated choice of law issues may arise when the cases are remanded to the transferor courts. 127 Along these lines, during multidistrict litigation, a party may file for bankruptcy, and then the transferee court may have to determine whether it or the bankruptcy court will handle the 113 Heyburn, supra note 15, at Herrmann, supra note 73, at See supra text accompanying notes Heyburn, supra note 15, at n Herrmann, supra note 73, at Heyburn, supra note 15, at Id. at Id. 121 Id. at Id. at Herrmann, supra note 73, at Id. 125 In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8 th Cir. 1996). 126 Herrmann, supra note 73, at Id.

15 issues that arise during the litigation. 128 If the bankruptcy court has jurisdiction over the case, then the bankruptcy court oversees settlement of the parties claims. 129 Instead, the transferee judge may try to prevent a party s bankruptcy by creating a limited fund class. Basically, the transferee judge will certify a class for settlement purposes. In this instance, a sum of money will be set aside to compensate claimants who can identify the party responsible for their damages. 130 The parties may create a global settlement so that a defendant is not forced into bankruptcy. 131 Consolidation may also curtail the disaggregation advantage 132 This occurs because all consolidated cases proceed together. Therefore, the tactical strategies of accelerating cases pending before preferred judges, or cases being prosecuted by weak opposing counsel are no longer available for consolidated federal cases. 133 When pretrial proceedings are finished, the cases that have not been disposed of are to be remanded to the transferor judge for trial. 134 This creates another problem: The transferor court judge must refamiliarize him or herself with the case often many months after the case was transferred for multidistrict litigation. 135 This possibility might be a factor when considering whether to bring a motion to transfer or oppose one. However, it may never materialize if the cases are terminated by summary judgment or settlement. Settlements can be promoted by bellwether trials of cases originally filed in the transferee district. For example, in the Vioxx case, six bellwether trials occurred. Four resulted in verdicts for the defendant. One resulted in a hung jury, and the other was a verdict for the plaintiffs. The outcome of these trials was a catalyst for settlement discussions. 136 If retransfer is a possibility, there are a number of ways to avoid it. The action can be refiled in the transferee district if plaintiffs agree and the transferee court has venue or the parties waive any objections to venue. 137 If the statutory requirements are satisfied, the transferor court may be able to grant a motion for a change of venue to the transferee court. 138 Still another option would be for the transferee judge to follow the action to the transferor court after obtaining an intracircuit or intercircuit assignment. 139 V. CONCLUSION It is tempting to try to categorize the practical considerations relating to motions for multidistrict litigation as pros and cons or risks and benefits. However, there is no one size fits all approach that will work. Categorization can only occur in the context of a particular set of actions that will potentially be transferred for multidistrict litigation. Even then, counsel will often face the daunting task of performing a cost/benefit analysis under conditions of uncertainty. 128 Parker, supra note 16, at See id. 130 Id. 131 See id. 132 Herrmann, supra at note 73, at Id. at (a). 135 Heyburn, supra note 15, at n Vioxx, supra note 100, at * Heyburn, supra note 15, at n Id. 139 Id.