Photo of Bexis

A panel of five judges — four federal, one state — spoke at the ACI drug and device conference in New York last month. The panel lasted for nearly two hours, but these were, to our eye, the highlights of that discussion from the judges whom we see most frequently in mass torts:

From Judge John Tunheim, of the District of Minnesota:

1. Judge Tunheim is allowing all non-preemption discovery to go forward in his cases while Levine is pending in the Supreme Court, and he’ll rule on preemption motions after the Supreme Court speaks.

2. He has not yet held any joint hearing with state judges in mass torts, but he’s looking for the right opportunity. He’d be interested in holding a joint state/federal Daubert hearing if the opportunity arose.

3. It’s very unlikely that he would ever stay a state court case to impose coordination with an MDL. In his experience, however, state court judges tend to move their cases essentially in lockstep with a related MDL.

4. Judge Tunheim sees a trend toward deferring class certification decisions to later in cases, which gives the judge a fuller evidentiary record and makes it less likely that trial court proceedings will be indefinitely delayed while an appellate court hears an interlocutory review of the class cert decision.

5. He has often considered using a Rule 706 court-appointed expert witness, but has to date always thought that the parties’ retained experts sufficed.

6. He has not yet tried a designated bellwether case in a mass tort, but he’s contemplating doing so, and he wouldn’t be surprised if he uses this technique in the near future.

From Judge Mark Bernstein, from the Philadelphia Court of Common Pleas:

1. Judge Bernstein generally will not defer state court discovery into case-specific issues simply because a related MDL proceeding has not yet progressed to case-specific discovery.

2. He will generally follow decisions by an MDL court unless Pennsylvania state law compels a different result.

3. He sees relatively few e-discovery disputes in his court. When litigants present e-discovery motions to state court judges, litigants should assume basically complete ignorance from the bench. Start your brief with: “We no longer use computer cards or tapes to load programs into computers.”

4. Judge Bernstein likes to hold Frye (Daubert) hearings, and he generally requires that experts appear live for those hearings.

5. He experimented with dividing discovery into “class” and “merits” phases in class actions, but found that there were often spats about the dividing line between those two categories. He now typically permits wide open discovery before the class certification hearing.

6. He has used reverse-bifurcated trials (damages first, followed by liability) in both asbestos and fen-phen cases and, given the success of that technique, wouldn’t be surprised if he and other Philadelphia state court judges follow that approach in future cases.

Judge Janis Jack of the Southern District of Texas:

1. Although she likes to coordinate state proceedings with federal in an MDL, she generally will not interfere with state court trial dates.

2. Class actions are generally not appropriate in personal injury cases. (We’re pretty firmly convinced that that’s the law, but it’s always nice to hear yet another federal trial judge say so.)

3. She likes to hold Daubert hearing fairly early in her cases. Then, if a witness is excluded for reasons unique to that witness (say, a lack of qualifications), the party whose evidence was excluded has a chance to locate another witness to testify to underlying science that may be admissible.

4. She’s relatively stingy on rebuttal experts. If possible, she wants them to be identified before trial and thus subject to pretrial Daubert challenges.

(Isn’t it nice to get a break from Beck and Herrmann every once in a while, and to hear instead from the folks who wear the robes?)