Late last month Bexis attended the annual ACI Drug and Medical Device Conference in New York.  In between helping to lead the discussion in the pre-conference Defense Counsel War Room and speaking on 3D printing and product liability, Bexis picked up a couple of interesting ideas about dealing with problems concerning federal multi-district litigation (“MDL”) that he hadn’t heard before.  We’re passing them along.  Even if they don’t ultimately get anywhere, at least our readers will be aware of these possibilities.

The first idea relates to the currently pending examination of MDL practices by the federal Advisory Committee on Civil Rules.  One of several proposals under consideration is some sort of interlocutory appellate review of “important” MDL rulings.  This recurring problem was described in the latest Lawyers for Civil Justice submission to the Advisory Committee:

Certain issues − such as pre-emption, jurisdiction and Daubert on general causation − are key legal questions that affect large number of cases in an MDL proceeding.  However, appellate review of critical motions in MDL cases is very rare, occurring only when a trial results in judgment for the plaintiff.  As a result, a large number of cases that should not have been brought are allowed to proceed through a costly litigation process without appellate review.  In many MDL cases, the overall litigation is settled without ever receiving the benefit of a definitive ruling as to the legal validity of critical issues.

LCJ (9/14/18) Proposals for Discussion, at 4-5 (footnote omitted).

The realistic prospects for MDL interlocutory appeal, however, seem low, as district court judges have complained about both the delay and loss of discretion such review would entail.  The appellate judiciary has not yet engaged, but it is questionable that they would support something that would add to their workload.

The version of MDL interlocutory review floated at the ACI meeting was different in that it paralleled the existing Judicial Panel on Multi-District Litigation.  Rather than adding to the dockets of existing courts, the proposal was to create an Appellate Panel on Multi-District Litigation that could come to be seen as the same sort of plum assignment for the appellate bench that the JPML has become for district court judges.  The Appellate Panel could consist of one judge from each circuit, appointed by the Chief Justice of the United States, to a fixed term (5 to 7 years seems adequate).  The 12-member panel could sit in groups of three, as is current appellate practice.  Four three-judge panels should be sufficient to hear the limited number of interlocutory appeals that MDLs would generate.

Although the details would have to be spelled out, it is probably a good idea to require one of the judges on any panel to be from the circuit where the affected MDL is located.  Appellate Panel decisions would have precedential effect within the MDL system, but not beyond it, as current circuit court practice.  There could also be an en banc procedure to resolve conflicts or particularly important issues.

This idea is neither perfect nor fully formed, and would probably require action by Congress (which created the original JPML), but in several ways it seems superior to the current proposals, which are unloved by practically all of the judges, who would have to approve any system of interlocutory appeals.

The second proposal arises from the much discussed drawbacks of the current MDL system of “bellwether trials.”  While we remain of the opinion that the MDL statute does not confer authority on an MDL judge to try any case (even in the same state or judicial district), not routinely assigned to him/her in the normal process, that view has yet to prevail.  Thus, one of the recurrent frustrations – shared by both MDL judges and defense counsel – is plaintiffs gaming the system by dismissing any “bellwether” cases that they don’t want to try, even though they helped create the bellwether selection process in the first place.  As the same LCJ submission described this problem, “plaintiffs will often voluntarily dismiss proposed bellwethers that might prove adverse to them, thus skewing any sample towards greater recoveries than average.”  LCJ (9/14/18) Proposals for Discussion, at 6.

As long as a party has the absolute right to dismiss that party’s case, there is no way to prevent strategic bellwether dismissals.  The thought we heard expressed at the ACI conference was that it is possible to “hit them where it hurts” when such shenanigans happen.  In this instance that means sanctioning the dismissal of bellwethers by reducing the plaintiffs’ side common-benefit fund.  That could be accomplished in two ways, perhaps enforced in tandem.  First, the common-benefit fund could be reduced by a certain percentage (say, one tenth of one percent) for each previously agreed-upon bellwether case that is voluntarily dismissed prior to trial.  The second approach would be to reduce the common-benefit fund by the amounts actually expended by both sides preparing any dismissed bellwether case for trial, since those expenditures are no longer of “benefit” to anyone after a voluntary dismissal.  Some bookkeeping would be required, but keeping track of case-specific expenses is hardly a rare thing in litigation.

The ideas explained in this post are one of the reasons we enjoy going to conferences such as ACI or DRI.  Nobody has a monopoly on creative ideas, and the more people we can trade ideas with, the better off we all are.