Now where were we before Riegel, and the Journal, and The Times so rudely interrupted?

(Sorry — we couldn’t resist. We just love typing those words.)

Oh, yeah. We were regaling you with tales from the Tulane Law Review Multidistrict Litigation Symposium.

One panel at the Symposium featured Dean Edward Sherman (of Tulane), Judge Stanwood Duval (of the Eastern District of Louisiana), and Professor Robin Effron (of Brooklyn Law School). The topic was one that we hadn’t really focused on before; heck, it was one that we’d never even heard of before — “event jurisdiction.” Event jurisdiction is the name Professor Effron has coined for statutes or orders that place before a single judge all lawsuits that arise out of a single event. Neither of the “events” discussed at Tulane has anything to do with drug or device law, but they both involved mass disasters and attempts to resolve complex litigation, so we figure we can post about them on this blog.

(And, hey, it’s our blog, anyway. We figure that if some oddball thing strikes our fancy, we have every right to inflict on you our ruminations on the subject.)

We really had only one point to make, and we’ll keep it quick.

The first of the two “events” that this panel discussed was Hurricane Katrina.

On September 19, 2005, plaintiffs filed the first of the lawsuits alleging water damage as a result of the breaches or overtopping of levees in the aftermath of Hurricane Katrina. That case was transferred to Judge Duval on February 23, 2006. The en banc court of the Eastern District of Louisiana later decided to consolidate all of the cases related to the failed levees to Judge Duval to avoid conflicting decisions among the various sections of the court. What is now captioned “In re: Katrina Canal Breaches Consolidated Litigation,” C.A. No. 05-4182, became the umbrella for all cases that concern damages caused by flooding as a result of breaches or overtopping in the areas of the 17th Street Canal, the London Avenue Canal, the Industrial Canal, and the Mississippi Gulf River Outlet.

This litigation involves claims for property damage, claims for insurance coverage, claims against the Army Corps of Engineers and state and local agencies that responded to the Hurricane, at least one lawsuit filed by the Louisiana Attorney General, and many others. This is thus litigation that is probably too unrelated to be centralized by the Judicial Panel on Multidistrict Litigation, even though all of the cases relate in some way to the common issue of “levee breaches.”

It sounds logical, and perhaps it is, to consolidate these cases for pretrial discovery and motion practice, but Judge Duval candidly acknowledged that the scope of the litigation has become far broader than anyone originally anticipated. Before Katrina, the average judge in the Eastern District of Louisiana was handling between 225 and 250 cases; there are now 1600 cases per judge in Judge Duval’s section. And describing some of these matters as mere “cases” doesn’t really do them justice. For example, 350,000 claims against the government have been joined in a single complaint. You can call that one “case” if you like, but it seems like an understatement.

Professor Effron discussed another example of what she calls “event jurisdiction.” We quote here from the SSRN description of Professor Effron’s law review article describing the consolidation of the litigation arising from the terrorist attacks of September 11, 2001:

“Shortly after the tragic events of September 11, 2001, Congress passed the Air Transportation Safety and System Stabilization Act (ATSSSA). The September 11th Victim Compensation Fund (VCF) was the centerpiece of the statute and provided a source of no-fault compensation to the tragedy’s victims and victims’ families. The ATSSSA also allowed victims to elect to pursue traditional litigation instead. The ATSSSA contains three jurisdictional features that have shaped the path of the litigation. The Act created a federal cause of action ‘for damages arising out of’ the terrorist related aircraft crashes; it gave the Southern District of New York original and exclusive jurisdiction over all actions ‘resulting from or relating to the terrorist-related aircraft crashes.’ Finally, it implemented a liability cap by limiting recovery in all actions to the defendants’ available liability insurance.”

The lesson from the 9/11 litigation was the same as that of the Katrina litigation. Over time, more and more plaintiffs, with claims more and more distant from the central events of 9/11, filed lawsuits. Workers who were on the scene on September 12 were later joined by workers on the scene much later, workers further from the scene, and so on. The litigation has thus grown beyond what Congress originally intended and has posed unique administrative difficulties.

If there’s a lesson to be learned here, it’s that courts and legislators cannot easily predict the precise scope of litigation that will grow out of a seemingly localized disaster. Statutes or orders consolidating these cases must provide judges with enough resources, and leave judges with enough discretion, to ensure that claims can be resolved — either within the designated “event court” or without — fairly and efficiently.