Consider an under-utilized vehicle for changing venue in state court cases.
Suppose your client faces two individual product liability cases filed in state court in Cook County, Illinois. The client is then named in a class action raising similar claims filed — and properly venued — in one of the downstate courts that the American Tort Reform Association has labeled a “judicial hellhole.” (We’re not really picking on Madison County in particular; we just couldn’t resist using it for the title of this post. As readers of this blog know, we’re practicing lawyers; we never pick on any judges or court systems, because we may someday appear before those judges. We love you guys in downstate Illinois. Really.)
Anyway, two individual cases upstate; one class action properly venued downstate. If the class action is not removable, how can the defendant escape from what is perceived to be an undesirable forum?
Some, but by no means all, states have implemented state court analogues to the federal multidistrict litigation system. Those mini-MDL rules or statutes generally permit cases that share common questions of fact to be transferred to a single judge for pretrial (and, in some states, trial) proceedings. Illinois is one of the states that has this type of system.
Illinois Supreme Court Rule 384 permits a party to file a motion with the Illinois Supreme Court to transfer and consolidate in one court cases that raise one or more “common questions of fact or law” pending in different counties. Thus, one possible “bridge from Madison County” would be to ask the Illinois Supreme Court to transfer the downstate class action to Cook County for consolidation with the previously pending individual cases.
We realize that this is high-stakes poker. First, there’s a chance that, despite your request, your up-state cases will instead be transferred downstate for consolidated proceedings. Not good.
Second, in the federal system, we’re quite reluctant to seek MDL treatment of product liability cases. One of us (Herrmann) claims to be the only guy on the planet who tells MDL riddles. For example: “What’s the similarity between an MDL and the Field of Dreams?” The answer, of course? “If you build it, they will come.” (Yeah, yeah. If you want to know the other riddles, you’ll have to ask.)
Anyway, we often advise against seeking federal MDL treatment of product liability claims for fear that creating an MDL will attract the eye of the plaintiffs’ bar and prompt the filing of more cases.
State court MDLs, however, aren’t as prominent as federal ones, so the risk of drawing new cases is somewhat reduced. And, if a particularly dangerous case has been filed in a particularly dangerous court, defense counsel should consider every possible way of improving the venue. Seeking to create a statewide coordinated proceeding is one possible bridge from Madison County; counsel should at least consider (even if they eventually reject) that possibility as a way to escape.