Multidistrict Litigation Is Not a Dirty Word
By Cynthia Minchillo, RP
WHAT IS MDL?
We have all heard the term
“mass torts,” but rarely do we
understand the breadth of these cases.
Usually if the topic arises up, our eyes roll
to the back of our heads. Most mass tort
cases conjure up visions of stacks of documents,
horrible surroundings in which to
review the documents, and hordes of people
claiming a critical illness from
asbestos. MDL or Multi-District Litigation
has shaped mass torts, but is by no means
meant only for personal injury. MDL can
involve intellectual property, contracts,
securities, and employment cases. This
article will provide you with the basics of
MDL practice including why it exists
today, how to find the information you
need, and the importance of the paralegal
in these types of cases. Although not the
most riveting of topics, it is a good idea to
have some knowledge of MDL no matter
what area of law you work in.
We all know that a tort is a civil wrong.
Mass tort cases usually involve one or
more Defendants that commit a civil
wrong against numerous alleged victims.
For this article, I will concentrate on cases
against manufacturers of products such as
Dow breast implants, Ortho Evra birth
control patches, Vioxx, Fen-phen,
Medtronic implantable cardioverter-defibrillators
(ICD’s), Ford Explorers, and Firestone
tires.
When a law firm decides to accept
clients involved in these cases, whether it
is for the Plaintiff or the Defendant, and
whether you have one client or 3,000, the
firm will most likely encounter an MDL
designated court. Here is a simplified
example of what happens: Your firm
decides to take on the manufacturer of a
new prescription drug that has allegedly
caused serious debilitating side effects.
Your firm files an individual lawsuit on
behalf of each one of your ten Plaintiffs in
State court. Now you have ten individual
lawsuits pending, and you move forward
with citation and service of the Defendant.
The law firm down the street is hired to
represent the Defendant, who is the manufacturer
of the new prescription drug.
Once they are served, they immediately file
a Notice of Removal in all ten cases. Upon
removal of all your cases to Federal court,
your attorney and you quickly work on a Motion for Remand. I
say quickly, because it is like being hit upside the head by a
board. Once the Clerk reviews the Notice of Removal, and recognizes
the cases being similar to 300 other cases that have now
been tagged and removed to a newly created MDL, the Clerk
issues a letter to the Judicial Panel on Multi-District Litigation
in Washington, D.C. notifying the panel of the ten new cases
pending in Federal court. It is the next piece of mail that you
get when you realize your cases are about to get transferred to
yet another Federal court assigned to a specific MDL. Now the
board you were hit with is giving you a headache. What do you
do?
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MDL BASICS:
First, try not to panic. It can be a sticky situation because like all
courts, especially Federal courts, the Panel has its own set of
local rules. It is imperative that the legal team work together to
get acquainted with the process as quickly as possible. The role
of the paralegal in this type of litigation is critical to the proper
management of cases. Main points of information for a legal
team’s journey through the MDL are as follows:
- Keep all correspondence from the Judicial Panel on Multidistrict
Litigation (“JPMDL”)
http://www.jpml.uscourts.gov/
- Calendar all deadlines for the Motion for Remand and
from MDL Panel. The transfer will be stayed for a short
time period in which you will have the opportunity to
oppose the transfer. In the meantime, any remand efforts
will also be continuing and will not be stayed. Other deadlines
will be for your Opposition, Corporate Disclosure,
Plaintiff Profile Form, etc.
- Review the local rules of the MDL Panel
http://www.jpml.uscourts.gov/
Rules___Procedures/rules___procedures.html
- Review all case management orders and procedures to
determine how cases are distributed and transferred
- Locate transferee courts
- Locate liaison counsel (if designated at the time of transferusually
imbedded in an order)
- Determine what forms will be used for discovery in this litigation,
i.e. Plaintiff Profile Form or Corporate Disclosure.
- Determine how documents are filed and maintained in the
litigation, i.e. Lexis / Nexis File and Serve utilized by many
MDL courts
MDL TERMINOLOGY:
Different areas of the law have their own set of terminology and
MDL is no exception. These definitions should help understand
the MDL basics previously listed and answer many questions or
at least get you headed in the right direction for the answers.
JPML: Judicial Panel on Multidistrict Litigation, more commonly
referred to as “MDL” or the “Panel.” Congress created the
Panel in 1968 by statute at 28 USC § 1407. Section 1407 was
created to determine whether civil actions pending in different federal districts involve one or
more common questions of fact, and to
select judges and courts assigned to
conduct such proceedings so as to not
duplicate discovery, pretrial rulings and
to conserve resources of the parties.
The Panel resides in Washington, D.C.
and is made up of seven sitting Federal
judges appointed by the Chief Justice of
the United States Supreme Court with
one Chairman, an executive attorney
and a clerk. All of the Judges are from
different districts.
Tag-Along Action: Any action that a Federal
Court determines should be tagged
and included in a specific MDL. (JPML
Rules 1.1 and 7.5)
CTO: Conditional Transfer Order issued
by the Panel. The Order explains the
reason for the potential transfer. The
Order includes a list of potential cases
to be transferred and what Federal District
the cases are currently pending.
This Order also provides the attorneys
with a designated time period in which
to object to the transfer, usually only 15
days. (JPML Rule 7.4)
Show Cause Order: The Panel will issue a
Show Cause Order “(a) When transfer
of MDL is being considered on the initiative
of the Panel pursuant to 28
U.S.C. §1407(c)(i). The parties are to
show cause why the action or actions
should not be transferred for coordinated
or consolidated pretrial proceedings
within twenty days of the filing of
the order.” (JPML Rule 7.3)
Removal Court: The Federal Court that
the case was initially removed to by a
party.
Transfer Order: The official order in
response to a Motion by a party to create
an MDL forum for conducting discovery
and pretrial matters in cases that
have common questions of fact. This
order usually transfers the initial tagged
cases and from there designates the
Transferee court.
Transferee Court: The Federal Court that
oversees a specific multidistrict litigation
assigned to it, i.e. the U.S. District
Court, Eastern District of Louisiana
manages the Vioxx MDL.
Transferor Court: The Federal Court that
the case was originally removed to.
Upon receipt of a transfer order from
the Transferee Court, the clerk of the
Transferor Court will forward the complete
original file to the Transferee
Court. (JPML Rule 1.6)
Panel Service List: List containing the
names and addresses of the designated
attorneys and the parties represented in
the action under consideration by the
Panel. The Panel updates the list after
each CTO is issued and as new cases
are added. Everyone on this list usually
gets a copy of the CTO’s and other
orders and/or actions of that Court.
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MDL TIMELINE:
Next and most importantly, the timeline
will help you calendar each step. If you
miss your opportunity to file a Motion for
Remand, the objection to the transfer to
the MDL is critical.
FINDING CRITICAL MDL
INFORMATION:
The Panel’s website has grown up considerably
in the last several years and offers
most of the information you will need to
get started, http://www.jpml.uscourts.gov/.
The website contains not only the Panel
and Clerk information, but also categorizes
all of the cases. When looking for a
specific pending MDL, or maybe just performing
a cursory search of the pending
MDL cases, you can scan the “Docket
Information.” From here, decide which
category you want to search. Again, for the
purposes of this paper, I have been using
“Products Liability.” Under “Products
Liability”, locate MDL-1657 In Re Vioxx
Marketing, et al.
Here you find the correct caption,
transferee Judge, the District, and the date
of transfer. Additionally, there may be a
link to the initial Transfer Order and the
Court, but not always. It also shows
whether you can locate documents on
PACER.
MDL No.
MDL-1657
Litigation Caption
In re Vioxx Marketing, Sales Practices and
Products Liability Litigation
Transferee Judge
Hon. Eldon E. Fallon
District
Eastern District of Louisiana
Litigation Transfer Date
02/16/05
Transfer Order
http://www.jpml.uscourts.gov/Pending_M
DLs/Products_Liability/MDL-1657/MDL-
1657-TransferOrder.pdf
Web Links
http://vioxx.laed.uscourts.gov
PACER/Image Access
PACER access; CM/ECF
Master Docket No.
After recovering from the first blow by
a board across the head, your attorney
may then ask you to locate some forms to
continue your journey. Now that you can
locate the Panel website and at least know
where your case is headed, you can work
on your objections and/or briefs. The
Panel’s website has a summary of the local
rules and forms. You can find the following
on the website:
- Checklist & Samples for filing a new MDL Motion to Transfer
- Checklist for filing a Notice of Opposition
- Sample Notice of Opposition
- Frequently asked questions
CASE MANAGEMENT ORDERS:
Now that you are in the MDL, you
need to know how it is managed. In order
to manage mass litigation in one court,
like the Vioxx litigation in the Eastern District
of Louisiana, there is always an initial
case management order (“CMO”). As the
litigation progresses, additional CMO’s
will be entered. In some litigation, there
may be 20 or more CMO’s depending on
how the litigation is managed.
The first order of business for counsel
and the MDL Court is to set up Liaison
counsel for both plaintiffs and defendants.Liaison counsel are usually nominated by
other plaintiff and defense counsel
involved in the litigation, and agree to take
on a hefty responsibility both in terms of
time and money. Usually identification of
liaison counsel coincides with the setup of
a Common Benefit Fund to help finance
the expenses for management of the litigation.
This may change over time, but generally,
each firm or lawyer involved in the
litigation pitches into the kitty to pay
repository and e-filing expenses.
The CMO also sets parameters in
which everyone will work including how
to split the Common Benefit Fund, how
documents are to be filed (i.e. electronically),
document storage and retrieval, and
how the litigation will be conducted in
general. Many times, the CMO is issued
upon edicts of the Liaison Counsel who
have reported their agreements on how to
conduct the litigation to the Judge. Of
course, the Federal Rules of Civil Procedure
and Evidence apply outside of any
agreements or CMO’s.
Usually when a case is transferred to
the transferee court, counsel representing
those tagged clients are sent an initial
packet by the transferee court explaining
court registration, filing, PACER, and
much more. The names of liaison counsel
and a list of all pending cases included in
the MDL are usually provided as well.
Because of backlogs and lack of support
staff, this does not always happen, so it is
imperative that a paralegal be assigned to
these cases and gather the necessary information.
PACER is a great tool for searching
old CMO’s in cases that you have just
now been added too. This will give you a
history of the MDL.
The CMO’s will give you a relevant history
of how the case progressed after initial
formation of the MDL. This is important
because there may be some special
requirements to maintain your lawsuit like
registering the attorney with the court;
signing up for Lexis/Nexis File and Serve
(free to sign up); and obtaining a PACER
account. In most cases, your attorney will
not need to be admitted to practice in the
MDL court if he or she is in good standing
with the Bar of any other U.S. District
Court.
CONCLUSION:
There is so much more to MDL than
meets the eye and which cannot be included
in this article for space purposes. The
main caution is to be sure you are aware of
all the deadlines. Contact the clerk of the
MDL Panel or court if you have questions,
search PACER for previous orders, obtain
help from liaison counsel, review local
rules again and again, and make sure you
have calendared all of your deadlines. The
road through MDL can be full of potholes,
but with some basics, you should be able
to arrive at your destination with your
vehicle in one piece.
Cynthia Minchillo, RP, Board Certified
Paralegal-Personal Injury Trial Law, Texas
Board of Legal Specialization, is the
NFPA® ABA Approval Commission Representative.
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