Photo of Stephen McConnell

Maybe this falls in the category of “people who live in glass houses…” but we think it is silly for lawyers to insult judges. At least when we rip an opinion, we endeavor to do so on sound doctrinal grounds. Further, when we have the temerity to jump on judicial reasoning, it is for a case where we are not involved. So call us fair-minded, cautious, or plain old chicken, but our inner compass and self of sense preservation tell us not to call our judge an oaf or an ogre. Judges can do a whole lot more to us (and our clients) than we can do to them. Mind you, we are talking about a situation where there actually is a legitimate criticism of a judge. Imagine how doltish one would have to be to call out a judge on specious grounds.

That is what recently happened in the Actos litigation. The federal MDL judge reached out to a New Mexico state court judge to try to coordinate schedules, and for some reason (we will get to that) that made a couple of plaintiff lawyers boiling mad. They wrote a letter to the federal judge accusing her of improper federal interference with the state court, violating comity, ex parte communications, and prejudicing the state court plaintiffs by delaying their case without proper notice. The answer came in the form of a judicial thunderbolt styled as a Memorandum Response in Dunlavey v. Takeda Pharmaceuticals America, No. 6:12-CV-1162, 2012 WL 3715456 (Aug. 23, 2012). It makes for fascinating reading. We like what the judge did, we like what the judge wrote, and we especially like the feeling of schadenfreude that washed all over us.

To begin with, there is absolutely nothing wrong with a federal judge reaching out to coordinate mass proceedings with a state court judge. The whole point of an MDL or any other aggregated proceeding is to increase efficiency. Presumably such efficiency benefits all parties, as well as the judicial system. The judge supplies ample cites from the Manual for Complex Litigation, the Manual for Cooperation between the State and Federal Courts, and many other sources demonstrating that federal-state coordination is “advised, encouraged and welcomed by both the federal and state courts.” 2012 WL 3715456 at *2. Clearly, “Cooperation between state and federal judges is not only advised, it is advised often.” Id. at *1 (emphasis in original). By contrast, the plaintiffs’ argument against federal-state coordination is littered with citations that constitute an exercise in “cherry picking”. Id. at *9. (We admit it – it is rich to see that term applied against the side that is always lobbing it at us.)

Most fundamentally, federal-state coordination does not constitute federal interference with state cases. The plaintiffs cite Younger and the Anti-Injunction Act, but nothing like an injunction was at issue here. As the court says, “this Court has not issued an injunction; this Court has not issued a temporary restraining order; this Court has not halted a legitimate state investigation; this Court has not enjoined a state officer – in short, only in the writers’ correspondence do these wholly inapplicable, egregious scenarios exist.” Id. at *4. Good stuff, right? Here, have some more: “Again, it is without question, any reference to an injunction exists only in the empty rhetoric and wholly unsupported and inapplicable argument of the writers’ correspondence.” Id. at *5. It is hard for lawyers to employ such vigorous language and make it work. From a judicial pen (or keyboard), it is powerful and terrifying.

We think the judge’s ire is well-earned. There is no breach of comity when a federal judge invites a state court to coordinate proceedings. The federal court cannot make the state judge do anything she does not want to do. The Actos federal judge appears to take particular umbrage at the plaintiffs’ implication that the state court judge “engaged in judicial misconduct by abdicating her role as a judge of the sovereign state of New Mexico.” Id. It turns out that the only thing that that ticks off a judge more than incorrectly attacking that judge is incorrectly attacking a fellow judge. The plaintiffs’ accusation against the state court judge is “wholly specious; the facts are nonexistent, and the legal argument is, again, prostituted.” Id. at *8. Wow. In any event, if that state judge does something that the plaintiffs think is wrong, the plaintiffs can appeal. Id. at *6. Or do the plaintiffs contend that the federal judge has also assumed control over the state appellate courts?

The reality is that most federal and state judges want to coordinate proceedings. It simply makes sense. Good examples of that abound here in Philadelphia, where our local Court of Common Pleas judges have coordinated with federal judges. Not too long ago there was a joint federal-state hearing on admissibility of expert testimony. The lawyers and witnesses appeared at one hearing in front of the federal and state judges. That saved time and money. It does not mean that the federal court somehow hijacked the state proceedings. Indeed, everyone understood that different standards applied (Daubert in the federal court and Frye or Fraubert in the Pennsylvania state court) and that different rulings might result. Moreover, the state judge is fully free to decline to participate or to arrive at a different substantive ruling. Indeed, sometimes it is the state court judge that opens up the dialogue with the federal judge There is nothing wrong with coordination and everything right with it. The Memorandum Response shows that the plaintiffs’ griping is wrong on the law, wrong on the facts, and wrong on policy.

The plaintiffs complained that the federal judge engaged in a forbidden ex parte communication with the state court judge. But ex parte means that a judge talked with one party without letting the other party in on it. No party was involved in the communication at issue. News flash: judges talk. They are allowed to talk. It is beyond silly for the parties to complain about lack of notice. Since when are judges forbidden from picking the brains of their colleagues without alerting the lawyers? As the Actos federal judge points out, both sides were actively involved in all the hearings where the judges made decisions about management of the cases, including scheduling.

The word “specious” repeatedly crops up in the Memorandum Response when referring to the plaintiffs’ letter. That might be one of the kinder things the judge says about the plaintiff lawyers. While the plaintiffs lambaste the judge (both the federal and state judges, really) for imaginary ethical improprieties, the federal judge suggests that the plaintiffs are hypocrites of the worst sort. First, the plaintiffs’ letter itself “was submitted unsolicited, wholly outside this Court’s orders and the Federal Rules of Civil Procedure, and in total contravention to the extensive system set in place by this Court within the MDL for orderly and full interaction with the Court and among parties.” Id. at *10. Second, the plaintiffs quoted from In re Palmisano, 70 F.3d 483 (7th Cir. 1995) in accusing the court of an ex parte contact, but the plaintiffs’ quote was incomplete. The full quote from Palmisano was that the “federal courts, no less than state courts, forbid ex parte contacts and false accusations that bring the judicial system into disrepute. ” 70 F.3d at 487. It was that last part that the plaintiffs omitted, and it was that last part that best describes the plaintiffs’ letter.

The plaintiffs’ criticism of the MDL judge’s effort at federal-state coordination is so wrong-headed, such an obvious misstep, that one has to ask what could have prompted it. The court calls it “an attempt to intimidate or manipulate the involved courts.” Id. at *9. If so, it does not look like it worked. We certainly hope so, anyway. Sometimes after a court takes a lawyer to task, the court then bends over backwards to be extra nice to that lawyer so as to show no hard feelings. But there isn’t any need for that here. That is especially true when we consider the other likely reasons for the plaintiffs’ intemperate, inaccurate letter:

1. The last thing the plaintiffs want is efficiency. They want multiple, inconsistent rulings, which would afford them the chance to forum-shop and then steer future filings to the courts with the most plaintiff-friendly rulings. It is funny how corporate defendants are always accused of trying to make proceedings unwieldy and expensive, turning litigation into a war of attrition. But we have not heard any in-house corporate lawyer talk that way for at least ten years. Companies are under cost-pressure and they hate litigation expenses. We know – we are an expense. Companies insist on cost reduction, not amplification. By contrast, some plaintiff lawyers act as if the best way to force settlement is to drag companies into multiple jurisdictions, to compel scientists and executives to appear for multiple depositions, and to make the whole litigation process a crazy-quilt mess. When judges from multiple jurisdictions try to coordinate schedules to streamline the process, they are derailing a key plaintiff strategy. Plaintiffs might write nasty letters about it. If we wrote anything, it would be a thank-you note.

2. Maybe this is inside baseball and an area where we have less than perfect knowledge, but in some litigations it seems like the most brutal battles are among the various plaintiff lawyers. In an MDL, lead lawyers are appointed. Not surprisingly, those lead lawyers get the most control and, eventually, the most fees. Fees are also affected by a plaintiff lawyer’s activity, such as depositions, even if such depositions are pointless or poorly done. If a plaintiff lawyer is not one of the lead lawyers in an MDL, that lawyer might seek to gin up activity in another jurisdiction. It is understandable, but it is not a legitimate reason to prevent federal-state coordination. In such a circumstance, characterizing federal-state coordination as being illegitimate or unethical would not only be wrong and self-destructive, it would be an ugly act of petulance.

In the end, the plaintiffs’ goals are irrelevant. What is relevant is that the Actos federal judge’s commencement of federal-state coordination was correct, will continue to be correct, and, we hope, will continue to be undeterred.