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On Wednesday, November 22, Judge Fallon issued his decision denying class certification for the Vioxx personal injury cases. That decision fits squarely in the mainstream of current class action jurisprudence in pharmaceutical product liability cases. If Baycol, Paxil, Prempro, Propulsid, and Rezulin, for example, could not be certified for classwide treatment, then it’s hard to say that the result in Vioxx should have been different.

Judge Fallon does, however, enter the fray on a more obscure issue that has many litigators in multidistrict litigation proceedings scratching their heads: What is the precise effect of filing a “master complaint” in an MDL? If a product liability complaint is filed in federal court in, say, New York, and the MDL Panel then transfers the case to, say, Chicago, everyone knows the rules. The MDL transferee court (in Chicago) would apply New York choice of law rules to the New York complaint to determine the applicable law. After the MDL transferee court concluded the pretrial proceedings, the transferee court would ask the MDL Panel to remand the New York case back to a New York federal court for trial.

Suppose, however, the MDL transferee court orders the plaintiffs’ steering committee to file a “master complaint” in the Chicago federal court. The master complaint has then been filed in an Illinois court, and Illinois choice of law rules should apply to determine the applicable law. Moreover, at the conclusion of pretrial proceedings, there is no longer a pending New York case. Does that mean that the case is not remanded, and the Chicago judge presides at trial? Is that really what the court had in mind when it ordered the filing of a master complaint? And can Lexecon (and its requirement of remand for trial) really be evaded so easily?

The case law on this issue is scant, and there appears to be no commentary on point. On the one hand, in In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 155 F. Supp. 2d 1069, 1078 (S.D. Ind. 2001), the MDL transferee court in Indiana applied Indiana choice of law rules to pick the substantive law applicable to a master complaint filed in Indiana. On the other hand, in In re Propulsid Prods. Liab. Litig., 208 F.R.D. 133, 140-41 (E.D. La. 2002), the court applied the opposite rule, applying the choice of law rules of the court where the complaint had originally been filed, rather than Louisiana choice of law rules, to analyze a master complaint. Vioxx now joins the fray, again applying home state choice of law rules (here, New Jersey), rather than Louisiana choice of law rules, to select the substantive law governing a master complaint filed in Louisiana. See In re Vioxx Prods. Liab. Litig., MDL No. 1657, Case No. 2:05-md-01657-EEF-DEK, slip op. at 7 (E.D. La. Nov. 2, 2006).

Frankly, we could live with either rule, but it would sure be nice to know what the rule is. When plaintiffs have filed putative class actions pleading state law claims in 25 different states, the MDL Panel coordinates all of those case in one court, and there’s then a single master complaint filed in the MDL transferee court in, say, Dallas, just what should we move to dismiss? The causes of action pleaded in the master complaint? Under Texas choice of law rules? Or is the master complaint a mere administrative convenience, and defendants must move to dismiss all of the causes of action pleaded in the 25 underlying complaints under the choice of law rules of 25 different states?

The confusion doesn’t stop there. When the pretrial proceedings are over, where will the case (or is it “cases”) be tried? In Dallas, because that’s where plaintiffs filed the master complaint, so there’s no need to remand the case to a different court for trial? Or are the consolidated master proceedings somehow broken up and remanded back to 25 different courts? If so, the process has subverted much of the efficiency that the MDL process was meant to engender.

As we said, we can operate in whatever procedural environment the courts choose to create (at least on this score). But it would sure be helpful if someone thought this through and devised an elegant solution, which the courts could then adopt and give clear guidance to those of us who toil in the litigation fields.