An anonymous friend of the blog recently passed along an unusual MDL order, along with the question had we ever seen anything like it? The order (copy here) denies an uncontested motion to designate 34 cases as tagalongs in the Aredia/Zometa MDL. As the order reflects, the 34 plaintiffs had sought tagalong status, and the defendant joined in the motion.
Nonetheless the J.P.M.D.L. (Judicial Panel on Multidistrict Litigation, for those of you unfamiliar with the nomenclature) denied transfer. The Panel found that transfer was “not necessary to achieve the just and efficient conduct of the litigation.” A/Z Order at para. 2. Apparently the Panel had had some discussions and determined not to approve anymore tagalongs. Id. (“[e]arlier this year the Panel determined that conditionally transferring actions to MDL No. 1760 would not serve the purposes of [MDL transfer]”). These discussions must have been internal and without notice to anyone, because neither the plaintiffs nor the defendants evidently knew about this prior determination. We suspect (and hope), however, that the Panel consulted with Judge Campbell, the MDL judge for Aredia/Zometa.
Here are the reasons for denial of transfer, as stated by the panel:
Common discovery has been completed in the centralized proceedings, and the transferee court has issued rulings on general causation. The remaining issues in the cases in the transferee court appear to be case-specific, and the transferee court has been suggesting remand of waves of individual cases once briefing on motions has been completed. . . . The parties also have not addressed why they cannot avail themselves of the documents and depositions accumulated [in] MDL No. 1760 while the cases move forward in their respective courts.
A/Z Order at paras. 2-4.
The closest thing we’ve seen to what happened in Aredia/Zometa occurred in our Seroquel MDL. In Seroquel, the plaintiffs successfully opposed a tagalong motion that we filed, getting an earlier order vacated. They argued that everything was on the verge of being remanded anyway. The Panel agreed:
Multidistrict litigation is not static. . . . Over the course of time, the relative merits of transferring additional cases can change as the transferee court completes its primary tasks. The point of diminishing benefit in tag-along transfers is never absolutely clear. After a certain point, however, the benefits of transfer should not be assumed to continue. This is a concern which, in close consultation with transferee judges, we intend to give closer attention.
Seroquel Order at paras. 2-3.
Maybe Aredia/Zometa is an example of this “closer attention.” Still, neither we, nor even our blogger emeritus Mark Herrmann (to whom the minutia of MDL practice is almost a hobby) had ever seen an MDL order cutting off tagalongs sua sponte while the MDL is still in litigation. In Bone Screw, for example, Judge Bechtle continued to accept tagalongs right up until the eventual settlement, even after literally hundreds of cases were remanded.
We wonder whether these orders reflects some sort of emerging view by the Panel as to what is the proper scope of an MDL proceeding. Is it merely for so-called “common discovery” – disproportionately burdening defendants – and “general causation” rulings? We hope not. Otherwise MDLs degenerate into exercises in using one-sided discovery expense as a weapon to force settlement.
In Bone Screw Judge Bechtle chose to conduct a fair amount of what the Panel might view as “individual case discovery” – especially: (1) requiring a case-specific general causation expert in each case, and (2) deposing all plaintiffs’ treating physicians. We found that kind of centralization made for significant efficiencies – for example, with well over 500 prescribers to depose, attorneys on the defense side (and we assume on the other side as well) got pretty well versed in the specific issues those depositions raised.
Other judges of course do things differently. There aren’t many judges as “hands on” as Judge Bechtle was in his MDLs. We’d like to think that the Panel is not strait-jacketing the MDL transferee judges into any particular vision of what is, and what isn’t, appropriate for MDL practice. That’s why we hope that what was going on behind the scenes in Aredia/Zometa was nothing more than “close consultation” – Judge Campbell letting the Panel know that “I’m remanding cases, please don’t send me any more.”