That’s the notion that we should have one set of procedural rules that applies equally to all substantive areas of the law. It’s a cornerstone assumption of modern American procedure. In the federal system, we call our trans-substantive rules — which apply equally to slip-and-falls, massive securities fraud cases, and everything in between — the Federal Rules of Civil Procedure.
Courts don’t always like trans-substantivism. When courts are deciding particularly tough cases, judges sometimes decide that the rules should be changed — just this once! — to accommodate unique circumstances. And judges often don’t foresee the unintended consequences of what they’ve done.
Take, for example, In re OxyContin II, No. 700000/07, 2009 N.Y. Misc. LEXIS 289 (N.Y. Sup. Ct. Feb. 10, 2009). This arises in the New York statewide coordinated proceeding for product liability claims arising out of the ingestion of the painkiller OxyContin.
You would ordinarily think that a Georgia resident, who was prescribed OxyContin in Georgia by a Georgia physician, and who ingested the drug (and was allegedly injured by it) in Georgia, and who received medical treatment for the injuries in Georgia, should bring his lawsuit in, say, Georgia.
And, in ordinary cases, that’s the right result. See id. at **6-**7 (describing precedents in which New York courts dismissed the cases of out-of-state Viagra and Lipitor plaintiffs under the doctrine of forum non conveniens).
But, according to Judge Maltese, “Mass Torts Are Different.” Id. at **8. (The bold and initial capitalization are in the original; this is the heading of a section of the opinion.) “Mass torts generally are handled as either coordinated matters before one judge . . . or, if appropriate, as a class action before one judge.” Id. “[T]he state and national trend is to aggregate and resolve these cases in a judicially efficient manner.” Id. at **14.
According to the court, this is particularly important because the Judicial Panel on Multidistrict Litigation denied plaintiffs’ effort to coordinate the cases at the federal level. Id. at **11. Unless the cases — all of the cases, including those involving out-of-state plaintiffs — are heard in New York, who knows what evil may befall us?
The court thus denied motions to dismiss (on the ground of forum non conveniens) the claims of 284 non-resident plaintiffs who chose to file their cases in New York state court.
Our tone here really doesn’t reflect our mood. We understand what Judge Maltese is thinking, and we appreciate that he’s doing his best to manage a tough administrative problem. But there’s always the option of doing what courts have done since time immemorial — let people sue in their home states, where it’s easy to conduct discovery, subpoena live witnesses to testify at trial, and apply local state law to facts decided by a jury of people from the local community.
By creating a new rule of forum non conveniens that applies only to mass torts, the court overlooks a bunch of competing interests. For example:
First, maybe the MDL Panel was correct, and these cases can be resolved without creating a single aggregated proceeding? It’s not crazy to look at the MDL Panel’s decision as a compelling precedent, rather than an excuse to jury-rig a nationwide aggregated proceeding in New York.
Second, there are disadvantages to creating aggregated proceedings. Among other things, those proceedings suffer from the “Field of Dreams” problem: “If you build it, [they] will come.” Once plaintiffs’ lawyers know that they can lob cases into a huge proceeding, with a judge likely unable to focus on any individual case, counsel will solicit more clients and not hesitate to file questionable claims. The court won’t have time to weed out those claims, and there may always be a chance of participating in some later settlement.
And that would be true even if the coordinated proceeding involved only New York plaintiffs.
By opening the coordinated proceeding to non-resident plaintiffs, the aggregated proceeding will grow still larger, and the New York courts will become a dumping ground for cases from all over the country. Moreover, New York will disproportionately be the dumping ground for meritless cases. After all, if a plaintiff has a good case, you should file it individually and have a judge focus on it. That puts pressure on the defendant. On the other hand, if you have cases that can’t stand the light of day, park ’em in the aggregated mass.
Finally, once plaintiffs’ counsel realize that coordinated proceedings in New York — unlike, say, coordinated proceedings in California — are open to all plaintiffs nationally, plaintiffs’ counsel will in the future strive to create more coordinated proceedings in New York. Smart lawyers notice when courts create tactically useful exceptions to general rules, and future lawyers will try to take advantage of those exceptions.
New York created its procedure for statewide coordinated proceedings only in 2002, and the state didn’t adopt rules of practice until 2003. Society managed to handle many mass torts in the years before those rules existed, and society can still do so today.
If the legislature wanted to change the rules governing forum non conveniens in mass torts, it could have done so in 2002 when it created the Litigation Coordinating Panel. But it didn’t.
Courts should hesitate to change our trans-substantive rules, which apply equally to all cases, to fit the circumstances of one “special” case or set of cases. Once courts create those exceptions, zealous counsel will strive to take advantage of them, courts will suffer unexpected consequences, and the administration of justice may ultimately suffer.