The predominant view of mass tort multidistrict litigation (MDL) proceedings, up to now, has been that the sojourn of the cases to the transferee court should end with the resolution of the litigation, most commonly with a national settlement. For the most part, the supervising judge is usually under considerable peer pressure not to send cases back to the districts where they had originally been filed, and the plaintiff leaders also see it as their goal to conclude litigation with a comprehensive settlement.

Recently, however, attention has been paid both by academic writers and judges to the potential benefit of remanding cases when full preparation has been accomplished, but before any trials or settlements. There is some legal basis for such an outcome since the law establishing multidistrict litigations – 28 USCA  §1407 – speaks only of “pretrial proceedings” in the transferee court and does not mention settlement or trial.

As to retransfer of cases when the MDL judges are “finished” with their work, there has been a suggestion, particularly from law professors Elizabeth Chamblee Burch from the University of Georgia Law School and Margaret S. Thomas from Emory Law School, that remand ought to be utilized more frequently than it is and that MDL judges should not be criticized just because they did not dispose of all the cases assigned to them. For more on this, see Elizabeth Chamblee Burch, Remanding Multidistrict Litigation, 75 La. L. Rev. 399 (Winter 2014) and Margaret Thomas, Morphing Case Boundaries In Multidistrict Litigation Settlements, 63 Emory L.J. 1339 (2014) on Westlaw.

One should be hesitant, however, to take away the chief power that any judge has in a pending litigation: the threat of trial.

This power quite frequently leads the parties to come to a settlement. Further, the actual trial of one or a handful of bellwether cases has been shown over and over in MDLs to be conducive to ultimate resolution of all the cases involving the same product, even those in the state court system.

A more appropriate use of remand of MDL transferred cases would be where the parties could not readily resolve the matter, which is primarily where the defendant refuses to settle the litigation globally.

For example, last year the judge managing the sprawling transvaginal mesh cases began remanding unsettled cases which involved one of the products. In Jones v. Ethicon Inc., No. 2:12-00443 (S.D.W.Va.), Judge Goodwin remanded to the N.D.Cal. cases which he deemed trial ready. (Other mesh defendants had settled the pending litigation in this MDL.)

Advocates of early remand should keep in mind the problems which are presented to the judges in the individual districts where the cases were originally filed. They may well know nothing about the case, and they have to get up to speed to do the very work which the MDL sought to relieve them of—understanding the issues well enough to guide the case to settlement or trial.

MDL judges who do anticipate that cases will be remanded should of course make sure that plaintiff lead counsel prepare a trial package for the individual lawyer.  This consists of “hot documents,” deposition cuts, experts’ reports and other information needed to prosecute the individual case.

I should note that the bill relating to class and mass actions, H.R. 985, which was just passed by the House of Representatives would under most circumstances limit MDLs to pretrial proceedings and ban bellwether trials. It remains to be seen what will now happen in the Senate.

 

This post was written by Paul D. Rheingold, founding partner of Rheingold, Giuffra, Ruffo & Plotkin LLP. Rheingold has long been active in mass tort work, including leadership and educational roles in over 20 drug and medical device mass torts, including some of the largest drug and medical device mass torts. He is the author of Litigating Mass Tort Cases. A cum laude graduate of Harvard Law School, Rheingold is the former national secretary of the Association of Trial Lawyers of America (now known as the American Association of Justice). Rheingold has been a faculty member at Harvard Law School, a visiting scholar at Stanford Law School and the RAND Institute, and is a member of the New York, Massachusetts, and District of Columbia Bars.