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This guest post was written by Pearson N. Bownas. Mr. Bownas is an associate resident in the Cleveland office of Jones Day. This post is entirely his work. It, of course, represents only his views, and not the views of his clients or firm:
Back in February, this blog discussed an article that one of the blog’s co-hosts, Mark Herrmann, and I wrote titled “Making Book On The MDL Panel: Will It Centralize Your Products Liability Cases?” Here’s a link to that post. As regular readers of this blog know, the dynamics of products liability litigation can change in a heartbeat if the Judicial Panel on Multidistrict Litigation (the “MDL Panel” or “Panel”) grants (or denies) a motion to centralize related cases in a single district court. Accordingly, for our article, we analyzed all the transfer decisions ever issued by the MDL Panel involving products liability cases to help lawyers and clients predict whether a motion to transfer and centralize their products liability cases will be granted or denied. We identified and analyzed many factors that influence how the Panel decides such motions (you can follow the link above and read the article to learn what they are). And we were proud of our hard work. But then, last month, I got worried.
On June 14, 2007, Judge John G. Heyburn II was appointed as the MDL Panel’s new chairman. When a new Supreme Court justice (or, these days, even a circuit judge) is appointed, dire predictions that settled precedent will be overturned and the face of American jurisprudence will change forever fill the air. “Oh no!,” I thought: “What if everything we said about predicting the future in the MDL Panel becomes worthless because the MDL Panel members change, and different judges with different philosophies start making different rulings?”
So I thought, and I researched, and then I relaxed. Our guidance is still sound, because the changing face of the MDL Panel – while theoretically having the potential to change the Panel’s direction – is not likely to have any meaningful effect on the Panel’s decisions for the foreseeable future.
The MDL Panel consists of “seven circuit and district judges designated from time to time by the Chief Justice of the United States, no two of whom shall be from the same circuit.” 28 U.S.C. § 1407(d). Even small changes in the Panel’s composition have the potential to affect the Panel’s decisions, because “[t]he concurrence of four [of the seven] members shall be necessary to any action by the panel.” Id.
And the Panel’s make-up will change from year-to-year. Originally, the Chief Justice’s appointments were open-ended, and judges sat on the Panel for long stretches. “Interview, Chair of Judicial Panel Sees Role as Gatekeeper,” The Third Branch, Nov. 2005, at 11. But in 2000, then-Chief Justice Rehnquist changed the policy and established staggered, seven-year terms. “Judicial Panel on Multidistrict Litigation Reorganized,” The Third Branch, June 2000, at 3. The terms are staggered so that a new member is appointed to the Panel each year, and a new Panel chairman is appointed every seven years. Id. But for four reasons, these regular changes likely will not significantly change the direction of the Panel.
First, the Panel’s specialized purpose probably insulates it from political, philosophical, and ideological influences that arguably affect other bodies. Remember, we’re not talking about death penalty or free speech cases here. The MDL Panel aptly describes itself as the mere “traffic cop” of the federal court system. Gregory Hansel, “Extreme Litigation: An Interview With Judge Wm. Terrell Hodges, Chairman Of The Judicial Panel On Multidistrict Litigation,” 19 Maine Bar J. 16, 21 (Winter 2004). Its job is limited to determining whether “civil actions involving one or more common questions of fact . . . pending in different districts” would benefit from being “transferred to [a] district for coordinated or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a). The mission is so narrow that there simply isn’t room for ideology to operate. While police officers may face certain discretionary decisions in the line of duty that might be influenced by their personal politics, none of those likely arises on traffic detail. So, too, with judges on the MDL Panel.
Second, the aim of the MDL Panel – increased judicial efficiency – is something that people of all political stripes seem to (and should) favor. Although, as discussed below, the MDL Panel’s muscle has been flexed most strongly by Republican-appointed judges, the statute creating the Panel was passed by a Democratic-controlled Congress (the 90th) and signed by a Democratic president (Lyndon Johnson). And there seem to be equal parts good and bad in the MDL process for the litigation interests that conventional wisdom aligns with each side of the aisle. For example, while corporate defendants can use the MDL process to make large-scale litigation more efficient (and thus, in some respects, less threatening) and to move cases out of suspect jurisdictions where plaintiffs’ lawyers have a perceived advantage, the MDL process, by aggregating cases in a single court, can also give plaintiffs’ lawyers leverage akin to that in a certified class action for settlement purposes. Thus, no matter who you are or what you believe, there are plenty of pros and cons to the MDL process in general, and to its application in a specific case.
Third, to the extent that political, philosophical, or ideological influences are, in fact, at play on the MDL Panel, those influences are much more stable than the regular turn-over of the Panel’s membership would suggest. While approximately 60% of sitting federal judges were appointed by Republican presidents (so say the results of a search of sitting judge biographies on the Federal Judicial Center website,, all seven current members of the Panel, all appointed by either Chief Justice Rehnquist or Chief Justice Roberts, were appointed to the federal bench by a Republican president. And all seven Panel members before that were appointed to the bench by Republican presidents. This can be no coincidence. And, with a relatively young, Republican-appointed Chief Justice at the helm, the trend seems likely to continue. Thus, while there may be yearly turn-over in the Panel’s membership, there likely will be long-term consistency in the Panel’s judicial philosophy.
Fourth, even if a rogue agent were somehow to slip onto the Panel, he or she would have little to work with to try to persuade other Panel members to change their views or deviate from Panel precedent. The Supreme Court and appellate court annals are replete with examples of views originally held by a lone dissenter that, through time and persistence, came to be held by the majority. But on the MDL Panel, dissenting views just aren’t expressed. Although 28 U.S.C. § 1407 requires the concurrence of only four members for the Panel to act, Judge Wm. Terrell Hodges, the previous Panel chairman, explained that, in his experience, unanimity was the rule: “we have a unique record on the Panel. So long as I’ve served on it, we have not yet encountered any decision that wasn’t determined unanimously. We had one abstention one time, but it was not a dissent. We come to a consensus rather well on the Panel.” “Interview, Chair of Judicial Panel Sees Role as Gatekeeper,” The Third Branch, Nov. 2005, at 11. Thus, if a newly appointed Panel member were hell-bent on changing the Panel’s direction, he or she would lack an existing platform from which to mount his or her campaign.
Any attempt to test these conclusions by a statistical comparison of decisions rendered by different Panel make-ups over time has inherent problems, not the least of which is that it would be terribly boring for me to write and for you to read. But it is worth painting with some broad numerical strokes. Through most of Judge Hodges’ chairmanship (from 2000 through August 2006), the Panel granted motions to transfer products liability cases at an 89% clip. When Judge John Nangle was Panel chairman (from 1990 to 2000), motions to transfer products liability cases were granted 78% of the time. During Judge Andrew Caffrey’s tenure as Panel chairman (from 1980 to 1990), however, denials outnumbered grants 14 to 6. Although Democratic-appointed judges outnumbered Republican-appointed judges on the MDL Panel during part of Judge Caffrey’s tenure, this denial-to-grant ratio probably tells us more about the cases that Judge Caffrey’s panel faced that it does about the panel’s members.
Several of the products liability transfer motions that the MDL Panel faced during the 1980s involved asbestos litigation, which many differently-constituted panels have wrestled with (and typically declined to coordinate) over the years. Also, it only makes sense that, as the volume of mass tort cases increased over time, the Panel would face more, bigger, multi-jurisdictional proceedings worthy of transfer for coordinated treatment. Thus, no matter the Panel’s make-up, one would expect the Panel to have coordinated fewer cases in the past than it does now.
The names and faces on the MDL Panel will change from year-to-year. For at least the foreseeable future, however, the Panel’s practice of transferring products liability cases where certain minimum threshold criteria are present will likely stay the same.