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Unpublished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, 92%
of the cases pending at the time of oral
argument before the JPML were filed
AFTER 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 –
otherwise more effort would have been devoted to
ensuring they were accurate. Instead, these
diagnoses were driven by neither health nor justice:
they were manufactured for money.
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 was cited twice as often in
sales practices cases.
 Proximity of district to events of lawsuitunsurprisingly- was most often cited in air disaster
cases.
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.