MULTIDISTRICT LITIGATION AFTER 50 YEARS: A MINORITY PERSPECTIVE FROM THE TRENCHES

Clay D. Land*

TABLE OF CONTENTS

I. PERSPECTIVE MATTERS ...... 1239

II. THE MINORITY APPROACH ...... 1242

III. CONCLUSION ...... 1244

* Chief U.S. District Judge, Middle District of Georgia. These observations, which were presented as part of a symposium on the 50th Anniversary of the enactment of 28 U.S.C. § 1407 hosted by the University of Georgia School of Law and the Georgia Law Review on February 7, 2019, are based primarily upon Judge Land’s experience as a transferee judge in the multidistrict litigation proceeding, In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., Middle District of Georgia Case No. 4:8-MD-2004. This MDL began with 22 cases on December 3, 2008. It exploded to more than 850 cases. It was finally terminated in 2018 after all of the cases were dismissed, settled, or remanded. Judge Land also acted as transferee judge in In re Tyson Foods, Inc., Fair Labor Standards Act Litig., Middle District of Georgia Case No. 4:7-MD-1854 (filed August 29, 2007 and terminated by settlement September 15, 2011).

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The transfer of cases to a consolidated multidistrict litigation proceeding (MDL) pursuant to 28 U.S.C. § 1407 has replaced the as “the foremost mechanism for resolving mass-tort disputes in the federal courts.”1 Currently, more than one-third of the civil cases pending in federal courts are part of an MDL.2 Some commentators have observed that these cases “implicate enormous financial stakes that affect the U.S. economy.”3 Yet, as noted by those seeking more structured case management of MDLs, no rule or single formula exists for the management of this significant slice of the federal court docket.4 They argue that MDL transferee judges “wield virtually total discretion under the guise of pretrial management.”5 Notwithstanding the lack of a formulaic approach to MDL case management, the ultimate termination of most MDL proceedings is remarkably consistent. More than 95% of the cases transferred to an MDL proceeding are never remanded back to their forum of origin due primarily to global settlements that are consummated in the transferee forum typically under the active direction of a transferee judge.6 Many view these results as a testament to the wisdom and efficacy of the MDL process. Others express concerns that we have lost our way.7 At the invitation of my alma mater, I offer the following observations from the perspective of a single district transferee judge in the trenches.8

1 Andrew D. Bradt & Theodore Rave, The Information-Forcing Role of the Judge in Multidistrict Litigation, 105 CALIF. L. REV. 1259, 1261 (2017) (citing Thomas Metzloff, The MDL Vortex Revisited, 99 JUDICATURE 36, 41 (2015)). 2 John K. Rabiej, As I See It, 101 JUDICATURE 1 (2017) (noting that as of 2017, more than 110,000 cases were pending in 20 mass-tort MDLs, which represents 33% of the total pending federal civil caseload). 3 Id. 4 Id. 5 Id. 6 Id.; see also Elizabeth C. Burch, Remanding Multidistrict Litigation, 75 LA. L. REV. 399, 400-401 (2014) (noting that more than 95% of mass tort MDL proceedings are resolved in the transferee court, with fewer than 5% of the cases ever being remanded). 7 See Rabiej, supra note 3. 8 These observations are not intended to diminish the unselfish, diligent work of the many district judges who have accepted MDL assignments out of a sense of duty, substantially increasing their workload voluntarily for the good of the judiciary and the public we serve. Nor should any comment be construed as a criticism of the Judicial Panel on Multidistrict Litigation, which has the awesome responsibility of deciding whether these cases should be consolidated in an MDL proceeding. These observations are simply intended to be candid commentary from one district judge who labored in the MDL trenches for almost

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I. PERSPECTIVE MATTERS

When a group of people who allege they are injured by a common product sue the same manufacturer, it is natural to conclude that their cases should be aggregated in some manner. The traditional aggregation procedure, certification of a class action, does not do the job for personal injury claims.9 The MDL statute has filled this void.10 A plain reading of that statute, however, suggests that its drafters never contemplated that less than five percent of cases transferred to an MDL proceeding would be remanded to the district from which they were transferred. The plain language of § 1407 specifically states that actions may be transferred “for coordinated or consolidated pretrial proceedings.”11 The statute further contemplates that upon the completion of the pretrial proceedings, the transferred action shall be remanded back to the district from which it was transferred.12 This language supports the conclusion that the transferee forum’s focus should be on pretrial proceedings designed to prepare the individual cases for remand to their forums of origin. This remand perspective, however, is not universally shared. Many judges and legal commentators find no unique value in merits-based determinations being made in the court of origin, nor do they find much restraint in the MDL statute.13 They maintain that having a single judge shepherd these cases through final a decade, actively managing a relatively typical MDL products liability proceeding consisting of over 800 cases from around the country. 9 See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 628-29 (1997) (beginning the skepticism toward Rule 23(b)(3) mass torts certification). 10 See 28 U.S.C. § 1407(a) (“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. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated.”). 11 Id. (emphasis added). 12 Id. 13 See Andrew D. Bradt, A Radical Proposal: The Multidistrict Litigation Act of 1968, 165 U. PA. L. REV. 831, 916 (2017) (arguing that the judges who pushed for the adoption of § 1407 “intended MDL to be an ambitious statute designed to transfer power over nationwide litigation from the hands of litigants and dispersed judges into the hands of a single judge who could shepherd the litigation to a final resolution”).

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resolution is exactly what the original drafters of § 1407 had in mind.14 Academic research based upon the contemporaneous papers of the small group of federal judges who were instrumental in the passage of § 1407 reveals that these judges viewed MDL proceedings as an opportunity for the federal judiciary to escape from provinciality in preparation for an anticipated nationwide litigation explosion.15 If you have the perspective that these cases are simply disputes that must be resolved, then resolving them all together in one forum is enticing.16 Transferee judges have broad discretion in managing these proceedings. Because their discretion is all that binds them in their management of the proceedings, their perspective determines how the cases will be managed.17 If they view themselves as “dispute resolvers” who use every tool in the box to terminate matters in the transferee courts, they are more likely to push for global settlements. If they see themselves as “adjudicators” who manage common and adjudicate common pretrial motions with an eye toward sending cases back to the courts of origin for final adjudication, they are likely to remand more cases. Whether a transferee judge is a “dispute resolver” or an “adjudicator” in the MDL context may depend in part on how the judge views the following larger issues: (1) Is the centralization of a large percentage of the federal tort docket in a few courts around the country inconsistent with the values associated with a decentralized federal

14 Id. 15 Id. at 834 (“They predicted in the early 1960s a ‘litigation explosion’ arising from the increased prevalence of mass torts and recognized the need for a device to efficiently process that litigation by centralizing it in the federal courts.”). 16 It has been reported that one transferee judge who presided over hundreds of federal by cities and counties against makers of opioid prescription painkillers, companies that distribute them, and pharmacy chains that sell them had no intention of simply exercising his Article III powers to manage mundane pretrial discovery and decide standard pretrial motions; instead, he apparently accepted the ambitious mission of solving the entire opioid crisis. Jan Hoffman, Can This Judge Solve the Opioid Crisis?, N.Y. TIMES (Mar. 5, 2018), https://www.nytimes.com/2018/03/05/health/opioid-crisis-judge-lawsuits.html; see also Howard M. Erichson, MDL and the Allure of Sidestepping Litigation, 53 GA. L. REV. 1287 (2019). 17 Judges’ discretion must of course be moored to the applicable rules. Federal Rule of Civil Procedure 16(c)(2)(L) provides that anchor, but it does not hold the judge very tight. It simply provides that one of the matters that the judge may consider and take appropriate action on at a pretrial conference is “adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems[.]” FED. R. CIV. P. 16(c)(2)(L).

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judiciary where local disputes by local litigants are decided near home? (2) Has the massive aggregation of claims through MDL combined with the alternative dispute resolution obsession hastened the disappearance of the jury trial (and does it even matter)?18 (3) Does MDL centralization with the hope of a global settlement encourage case solicitation resulting in a material number of marginal cases being filed in the federal courts?19 (4)

18 Much has been written on the vanishing jury trial. See, e.g., Hon. William G. Young, Keynote: Mustering Holmes’ Regiments, 48 NEW ENG. L. REV. 451, 452 (2014) (“Face it–the American jury system is dying.”); Richard D. Freer, Exodus from and Transformation of American Civil Litigation, 65 EMORY L. J. 1491, 1519 (2016) (“Because so few cases go to trial, public engagement through access to courtrooms and jury service today is relegated to the realm of folklore and mythology.”); Hon. Joseph F. Anderson, Jr., Where Have you Gone, Spot Mozingo? A Trial Judge’s Lament Over the Demise of the Civil Jury Trial, 4 FED. CTS. L. REV. 99 (2010) (documenting the decline of civil cases being tried to a verdict); Benjamin Weiser, Trial by Jury, a Hallowed American Right Is Vanishing, N.Y. TIMES, Aug. 7, 2016, https://www.nytimes.com/2016/08/08/nyregion/jury-trials-vanish-and-justice-is-served- behind-closed-doors.html (“The national decline in trials . . . has been noted in law journal articles, bar association studies and judicial opinions.”). While that subject is beyond the scope of these observations, it is worth noting that the explosion of MDL proceedings has certainly contributed to this demise. See Burch, supra note 7 (“Aggregation—whether through class actions or, as is more likely today, multidistrict litigation—contributes steadily to disappearing trials and fuels the new paradigm of making and enforcing a settlement grid.”). 19 See In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Lit., 2016 WL 4705807, at *1 (M.D. Ga. Sept. 7, 2016). Although one of the purposes of MDL consolidation is to allow for more efficient pretrial management of cases with common issues of law and fact, the evolution of the MDL process toward providing an alternative dispute resolution forum for global settlements has produced incentives for the filing of cases that otherwise would not be filed if they had to stand on their own merit as a stand-alone action. Some lawyers seem to think that their case will be swept into the MDL where a global settlement will be reached, allowing them to obtain a recovery without the individual merit of their case being scrutinized as closely as it would if it proceeded as a separate individual action. This attitude explains why many cases are filed with little regard for the statute of limitations and with so little pre-filing preparation that counsel apparently has no idea whether or how she will prove causation. It may also explain why some lawyers seek to withdraw from representation when a global settlement is not forthcoming, leaving their clients abandoned to proceed pro se in a complex MDL proceeding. This phenomenon produces the perverse result that an MDL, which was established in part to manage cases more efficiently to achieve judicial economy, becomes populated with many non-meritorious cases that must nevertheless be managed by the transferee judge—cases that likely never would have entered the federal court system without the MDL.

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Does deciding case-specific merits-based issues in the transferee court increase the risk of inconsistent rulings upon remand?20

II. THE MINORITY APPROACH

In the Mentor Obtape MDL, I made the conscious decision to follow the plain language of the MDL statute and prepare the cases for remand back to the courts from which they were transferred. If the parties wished to settle cases along the way, I did not discourage it.21 But our focus was on the pretrial adjudication of the cases. Unsurprisingly, the parties never reached a global settlement. Each case was either settled, dismissed, or remanded. Some would view this as failure because it left work to be done in the originating courts. But I did not come away from the experience thinking we should have done more. To the contrary, I think we should have done less. In our zeal to have each case ready to try upon remand, we expanded our mission beyond managing only the common issues. We managed case-specific discovery and adjudicated case-specific motions. In retrospect, this ambitious approach was a mistake. I am now convinced that the transferee judge should focus only on pretrial matters common to all the cases and reserve individual case

20 When the transferee judge manages the proceeding with a focus on preparing the individual cases for remand and trial, the transferee judge must decide individualized motions that may depend upon an interpretation of state law from states different than the transferee forum state. And when those motions are appealed, they are appealed to a Circuit Court of Appeals that may be different from the Circuit to which the cases will be remanded. Thus, certain pretrial rulings could be made by a district judge based upon that district judge’s interpretation of state law from a state with which the judge is not familiar, with that judge’s determination potentially reviewable by a Court of Appeals from a Circuit disconnected from the forum of origin. Then, when the case is remanded to the originating forum, that Court, which is familiar with the law of the state where it sits, faces the dilemma of whether it is bound by the rulings of the out-of-circuit courts due to collateral estoppel or law of the case principles. 21 Some legal scholars have suggested that the transferee judge should not only be receptive to a voluntary global settlement but should be actively involved in the mediation of the cases, even to the point of expressing an opinion on the fairness of a proposed global settlement. See Bradt & Rave, supra note 1, at 1296. Such proposals raise serious concerns. It is problematic for a judge presiding over an MDL who may be called upon to issue rulings on the merits of the constituent cases to opine as to the merits of the proceeding while wearing his mediator hat and then pretend that he never expressed such opinions when he dons his judicial robe. Placing one’s finger on the scale, as all effective mediators must, is anathema to a judge’s solemn vow to be the umpire.

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issues for resolution by the transferor court.22 Under this approach, counsel would identify the matters that are common to all of the cases in the MDL proceeding, such as depositions of corporate representatives and common fact witnesses, defect experts, and general causation experts; motions on general causation; Daubert motions on common experts; and preemption motions. The MDL transferee judge would not oversee case-specific discovery, thus avoiding the substantial time spent on specific causation-discovery, damages, and statute of limitations motions. And expensive so-called bellwether trials would be unnecessary.23 With these common matters settled, the transferee judge’s final task is suggesting a remand to the courts from which the cases were transferred. The lawyers who conduct the common discovery and pretrial proceedings would receive compensation for their work from the litigants who use their work in the remand forum. Some may argue that reducing the chances of a global settlement will limit who is willing to serve on the plaintiffs’ leadership committees of the MDL. If the leadership committees are assured that they will be fairly compensated if the remanded cases are resolved favorably, whether by trial or settlement in the remand court, then the MDL proceeding is likely to continue to attract high quality counsel. Additionally, if lawyers know that the vast majority of cases will be remanded, this should result in closer scrutiny of each case before it is signed up; there will consequently be less incentive to aggregate a large inventory of cases, thus resulting in fewer marginal cases being filed.

22 In the Mentor Obtape MDL, we took the ambitious approach of managing the MDL with the goal of managing the discovery for every case transferred to the MDL, including case- specific discovery and deciding every pretrial motion, which included case-specific motions. Thus, if the case was not settled or dismissed and was remanded to the transferor court, it would be ready for trial. Putting aside the burden placed upon the single transferee judge and staff, this approach likely would not be possible for MDLs with more cases than the Mentor Obtape MDL. In retrospect, this process also creates concerns about whether an individual plaintiff should expect that before her individual case is disposed of on the merits, she should have her day in court in a judicial forum that is near her home, or at least within her state or her judicial circuit. 23 I have not found the bellwether process particularly helpful if its primary purpose is to give the parties assistance in evaluating the value of the transferred cases. During the Mentor Obtape MDL, we tried two bellwether cases to verdict. One resulted in a verdict for the Defendant, and in the other, the jury awarded $5 million dollars. Both cases had the same product, the same general causation experts, the same product defect experts, and the same lead trial lawyers.

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Some defendants may complain that this focus on common issues gives the plaintiffs a head start. Plaintiffs are able to conduct their discovery and pretrial proceedings while the product manufacturer must wait until the cases are remanded to conduct any plaintiff- specific discovery. But defendants will have had an opportunity to have important common issues decided such as defect, general causation, and expert opinion admissibility. Ultimately, if a defendant calculates that the benefits of MDL centralization do not exceed the costs, then that defendant can always oppose the motion for centralization. This refocus on the purpose of § 1407 as derived from the plain language of the statute would re-center merits-based adjudication in the local district courts closest to the litigants’ home. In addition to giving a litigant her day in court, this would likely discourage high volume indiscriminate aggregation, and assure that significant merits-based state law issues are decided by the judges most familiar with that state law. More remands would also create the opportunity for more jury trials for litigants who wish to resolve their disputes the old-fashioned way.

III. CONCLUSION

Many judges, lawyers, and members of academia have concluded that Rule 23 no longer provides the tools necessary to manage modern mass tort litigation. Just as nature abhors a vacuum, creative lawyers and judges tend to find ways to fill a perceived legal void. Not satisfied with simply centralizing common cases for pretrial management and then sending them back to their home districts for trial, the majority approach focuses on managing the MDL to final resolution in the transferee forum. Thus, one-third of the civil cases filed in federal court find their way to a transferee court somewhere far away—never to make it back from whence they came. Perhaps it’s time to help more litigants find their way back home.