Transcript The Pros and Cons of MDL Consolidation
The Pros and Cons of MDL Consolidation
Linda S. Woolf Jeffrey J. Hines
Goodell, DeVries, Leech & Dann, LLP
Baltimore, MD
MDL AHEAD
It Can Happen to You…
Since 2000, 67-87% of requested MDL transfers have been granted by the JPML.
As of February 2010, there are 310 MDLs in over 60 federal districts.
http://www.jpml.uscourts.gov/General_Info/Overview/overview.html
Publicity:
A Weapon of Destruction
Beware: The World is Watching….
“Public health is very much at stake here” “The world is watching this litigation closely and with great concern…” “Bloomberg, L.P. has standing as the eyes and ears of the public”…
And There’s Nowhere to Hide!
Embarrassing Personal Emails!
Unpublished Clinical Trials!
If You Build it They Will Come…
The Seroquel
® In In Re Seroquel Liability Litigation of the cases pending at the time of oral argument before the JPML were filed AFTER , 92% the petition for MDL was filed.
Three years into the MDL, there are over 20,000 claims.
The Seroquel
® 91% of the newly-filed MDL cases did not allege diabetes (the claimed injury in the litigation). AstraZeneca has won summary judgment or obtained voluntary dismissals in every case worked-up so far in the MDL. But the remaining meritless cases are now facing remand for trial.
If You Build it They Will Come…
Plaintiffs gain “critical mass” which gives them leverage despite meritless cases.
Knowing this, Plaintiffs’ counsel do not always do a good faith pre-suit investigation.
The Forum “Shell Game”
Plaintiffs’ counsel “bury” their weak cases in the MDL, hoping they will never see the light of day.
At the same time, Plaintiffs aggressively advance strong state cases in an effort to obtain favorable decisions and increase their leverage in the litigation.
Higher Stakes = A Harder Fight
Every discovery battle takes on monumental significance. It is difficult to win discovery battles based on burden or relevance.
Higher Stakes = A Harder Fight
The focus is on generic discovery (i.e., the Company).
Plaintiffs walk away with a stronger case against the company.
Higher Stakes = A Harder Fight
Counsel must devise arguments that can win the cases wholesale.
This requires greater effort and expense.
Cost savings is a myth
Any Potential Cost Savings is Offset By:
MDL 2139: A Recent JPML Denial In Re Ambulatory Pain Pump- Chondrolysis Products Liability Litigation (MDL. No. 2139) was denied transfer on March 14, 2010.
MDL 2139: The Panel’s Conclusion “we are unconvinced that centralization would serve the convenience of the parties or promote the just and efficient conduct of the litigation, taken as a whole.” “The parties can avail themselves of alternatives to § 1407 transfer to minimize whatever possibility there might be of duplicative discovery and/or inconsistent pretrial rulings.”
Reasons Cited for Denial:
Individual issues of causation and liability predominated: Pain pumps vary in size, design, volume capacity, duration and flow capacity.
The same anesthetic was not used in all surgeries.
Plaintiffs have different medical histories that bear on causation.
Diverse procedural stages Fact discovery was either over or nearly over in many cases.
Expert discovery was underway or had been completed in many cases.
A Different Perspective
But What About MDL 1553?
Oh, I think I saw that movie….
Wait a minute, was I in that movie??
“The inspiring true story of courageous Judge Jack and a screening scam that will leave you… scandalized.”
In Re Silica Products Liability Litigation For-profit screening company with no medical training generated 6,757 MDL Silicosis claims.
9,083 MDL plaintiffs had been diagnosed by under ten physicians.
The Medical Evidence
Unreliable Exposure Histories “devoid of meaningful details” -Judge Jack Unreliable Radiological Opinions “ Double Dippers” Unreliable Differential Diagnoses “it is clear that [the doctor] had an agenda: diagnose silicosis and nothing else” -Judge Jack
Judge Jack
… these diagnoses were about litigation rather than health care. And yet this statement, while true, overestimates the motives of the people who engineered them. The word “litigation” implies (or should imply) the search for truth and the quest for justice.
But it is apparent that truth and justice had very little to do with these diagnoses
ensuring they were accurate. Instead, these
they were manufactured for money.
– otherwise more effort would have been devoted to diagnoses were driven by neither health nor justice:
Efficiency Breeds Economy
• Fewer Depositions • Less Travel • Fewer Documents • Fewer Motions • Less time away from work for employees
Cost Savings
Consolidation Means Consistency
Minimizes disparate rulings on identical subject matter.
Encourages coordination between state and federal courts on common pretrial issues.
Judge may appoint a Special Master.
The MDL “Black Hole”
“The centralized forum [of MDLs] can resemble a black hole, into which cases are transferred never to be heard from again.” Eldon E. Fallon, et al., Bellwether Trials in Multidistrict Litigation , 82 Tul. L. Rev. 2323, 2330 (2008).
The MDL “Black Hole”
Of the 216,809 actions transferred to an MDL since 1968, only 11,737 have been remanded by the JPML for trial.
– Statistical Analysis of Multidistrict Litigation 2009 ( http://www.jpml.uscourts.gov/Statistics/statistics.html
) If your case is transferred to an MDL, settlement will be the likely disposition.
MDL Judges tend to be proactive.
Parties already convened- just need dialogue.
MDL AHEAD
Now What?
Parties only have two limited opportunities to influence the JPML’s selection of transferee district and judge: A 20 page brief, and 1 to 5 minutes for oral argument.
Thus, it is important to have a strategy for MDL transfer from the outset.
A Real Advocacy Challenge
Counsel opposing consolidation must argue against transfer but then for a particular district in the event transfer is ordered.
Early research is the key to developing arguments in opposition that do not contradict transfer to your desired transferee district.
What Does the JPML Consider ?
Number and complexity of actions How many potential “tag-along” actions there are.
The fewer the cases, the more complex the issues must be to warrant transfer.
Procedural stage of the cases Transfer is more likely for cases in early procedural stage.
For cases nearing trial, or in a wide variety of different procedural stages, transfer is less likely.
What Does the JPML Consider ?
Opportunity to coordinate with other proceedings Forum where federal/state coordination can be most extensive.
Experience of judge Experience with other MDLs.
Experience with the subject matter of the litigation.
What Does the JPML Consider ?
Docket conditions of transferee judge and district Caseload and resources to handle massive, complex litigation.
Preferences of the parties Not dispositive, but can be persuasive.
Geographic location of district Proximity to important witnesses, company operations, evidence or important parties.
JPML Decisions: A Closer Look
One article undertook an analysis of over 300 JPML transfer orders from 2003-2008 to look at what factors the Panel cited for various types of cases. – Unsurprisingly, 93% of transfers were to a district where either a constituent action or “tag-along” action was currently pending.
Daniel A. Richards, An Analysis of the Judicial Panel on Multidistrict Litigation’s Selection of Transferee District and Judge , 78 Fordham L. Rev. 311, 331 (2009).
JPML Decisions: A Closer Look
Additional factors considered may vary depending upon the type of case.
Preferences of parties and geographic centrality were cited most often in products liability cases.
Experience of the judge sales practices cases.
was cited twice as often in Proximity of district unsurprisingly- was most often cited in air disaster cases. to events of lawsuit-
The Bottom Line
Whether or where the JPML will transfer cannot be predicted with certainty.
Focus early research and strategy development on the “where” question.
A “hands on” judge who has experience aggressively managing complex litigation is the linchpin to a successful MDL.