Some of us are on the mailing list of the Rabiej Litigation Law Center.  Recently, we received an email entitled “Rare Mass-Tort MDL Consensus Among Opposing Counsel & Judges.”  Since such a broad consensus is indeed “rare,” we read the email.  Apparently, a recent conference resulted in “a rare consensus:  holding ‘pilot trials’ very early in an MDL provides substantial value to everyone involved.”  Here is how the email described the “pilot trial” concept:

[A]ttendees were confident that pilot trials could successfully substitute for later bellwether trials, so long as the main issues across the cases are properly represented.  These pilot trials would quickly familiarize the court with the central issues, paving the way for early preemption and Daubert rulings while offering both parties clear insight into potential trial outcomes to foster earlier resolutions.

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In addition to ”picking representative pilot cases, . . . participants highlighted several priority topics . . .”:

• Judicial Selection of Cases:  Having judges choose pilot cases avoids the typical disagreements between opposing counsel.
• Standardized Discovery:  Product-liability standard case timelines for document production and expert disclosures should apply to pilot trials.
• Binding Preemption & Daubert Precedent:  Preemption and Daubert rulings in pilot trials ought to bind all cases in the MDL, provided notice and an opportunity to be heard are given.

The email mentioned only one example:  that a “pilot-trial proposal was introduced in the Depo-Provera MDL” but never came to fruition due to a settlement.  Our understanding is that the Depo-Provera proposal really wasn’t much different than a bellwether trial, only earlier.  Nonetheless, from a defense perspective that proposal had several meritorious features:

• The chosen “pilot” plaintiffs were reasonably representative; they were not either side’s best or worst cases.
• Plaintiffs were not allowed to rig the selection process by dismissing their weakest cases to maximize the possibility of a good result.
• The initial work-up centered on two defense-friendly issues:  general causation and preemption, which ensured focused discovery and motion practice.
• As already mentioned, the overall handling of cases in the Depo Provera MDL required early plaintiff vetting on proof of use and injury

Still, as to the “pilot trial” concept generally, color us unconvinced for essentially the same reasons that we don’t like the aforementioned “bellwether trial” concept either.  As Bexis wrote about a similar MDL conference back in 2018:

There was considerable discussion of bellwether trials, but we have doubts that rules could solve the problems that were mentioned.  Our view is to interpret the MDL statute as written, and restrict MDLs to “coordinated or consolidated pretrial proceedings.”  28 U.S.C. §1407(a) (emphasis added).  A textualist approach to the MDL statute would, and we think should, mean no trials, “bellwether” or otherwise, in the MDL transferee court.  Simple.  No rules change needed. . . .  [I]f someone wants to preserve it for appeal, this issue could be the next Lexecon.

(Emphasis original).  If “we’re all textualists now,” as Justice Kagan famously announced, then the “pretrial” limitation that Congress created in the MDL statute (28 U.S.C. §1407), should mean just that – “pretrial proceedings” only.  Thus, any sort of “trial” goes beyond the power Congress conferred in the MDL statute, and the Supreme Court would likely so hold, if the issue ever came before it.

We are bolstered in that respect by what the Supreme Court recently held about statutory interpretation in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024):

[S]tatutes, no matter how impenetrable, do − in fact, must − have a single, best meaning.  That is the whole point of having written statutes; every statute’s meaning is fixed at the time of enactment.  So instead of declaring a particular party’s reading “permissible” in such a case, courts use every tool at their disposal to determine the best reading of the statute and resolve the ambiguity.

In an agency case as in any other, though, even if some judges might (or might not) consider the statute ambiguous, there is a best reading all the same. . . .  In the business of statutory interpretation, if it is not the best, it is not permissible.

Id. at 400 (citations and quotation marks omitted).

The permissible scope of multidistrict proceedings is set by a statute, 28 U.S.C. §1407.  That statute provides, in pertinent part:

When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. . . .  Each action so transferred shall be remanded . . . at or before the conclusion of such pretrial proceedings to the district from which it was transferred. . . .

(b) Such coordinated or consolidated pretrial proceedings shall be conducted by a judge or judges to whom such actions are assigned. . . .  The judge or judges to whom such actions are assigned . . . may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings.

(c) . . . The panel shall give notice to the parties in all actions in which transfers for coordinated or consolidated pretrial proceedings are contemplated. . . .  

Id. §1401(a-c) (emphasis added).  From reading this statutory language, we think, first, that Congress’ limitation of the scope of MDLs to “pretrial proceedings” was intentional, and second, that the “best,” and therefore only permissible, construction of “pretrial” cannot include “trials” of any sort.

So regardless of both sides’ agreement, either in an MDL or in an MDL-related conference, that a “pilot trial” might be a good idea, as §1407 currently stands, holding one would be ultra vires.  There are plenty of non-“trial”-related ways to obtain binding MDL-wide pretrial rulings on issues like preemption and Rule 702 (we don’t say Daubert).  One example is the recent show-cause order in the Talc MDL.  Creating another atextual “trial” variant isn’t one of them under the MDL statute as it currently stands.