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The Pros and Cons of MDL Consolidation Goodell, DeVries, Leech & Dann, LLP Baltimore, MD Linda S. Woolf Jeffrey J. Hines.

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Presentation on theme: "The Pros and Cons of MDL Consolidation Goodell, DeVries, Leech & Dann, LLP Baltimore, MD Linda S. Woolf Jeffrey J. Hines."— Presentation transcript:

1 The Pros and Cons of MDL Consolidation Goodell, DeVries, Leech & Dann, LLP Baltimore, MD Linda S. Woolf Jeffrey J. Hines

2 MDL AHEAD

3 It Can Happen to You… Since 2000, 67-87% of requested MDL transfers have been granted by the JPML. 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. As of February 2010, there are 310 MDLs in over 60 federal districts.

4

5 Publicity: A Weapon of Destruction

6 Beware: The World is Watching…. Bloomberg, L.P. has standing as the eyes and ears of the public… The world is watching this litigation closely and with great concern… Public health is very much at stake here

7 And Theres Nowhere to Hide! Sales Call Notes! Embarrassing Personal s! Sensitive Marketing Data! Doctors Prescribing Practices! Unpublished Clinical Trials!

8 If You Build it They Will Come…

9 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. 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. Three years into the MDL, there are over 20,000 claims. Explosion!

10 91% of the newly-filed MDL cases did not allege diabetes (the claimed injury in the litigation). 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. 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. The Seroquel ® Explosion!

11 If You Build it They Will Come… Plaintiffs gain critical mass which gives them leverage despite meritless cases. 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. Knowing this, Plaintiffs counsel do not always do a good faith pre-suit investigation.

12 The Forum Shell Game Plaintiffs counsel bury their weak cases in the MDL, hoping they will never see the light of day. 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. At the same time, Plaintiffs aggressively advance strong state cases in an effort to obtain favorable decisions and increase their leverage in the litigation.

13 Higher Stakes = A Harder Fight Every discovery battle takes on monumental significance. Every discovery battle takes on monumental significance. It is difficult to win discovery battles based on burden or relevance. It is difficult to win discovery battles based on burden or relevance.

14 Higher Stakes = A Harder Fight The focus is on generic discovery (i.e., the Company). The focus is on generic discovery (i.e., the Company). Plaintiffs walk away with a stronger case against the company. Plaintiffs walk away with a stronger case against the company.

15 Higher Stakes = A Harder Fight Counsel must devise arguments that can win the cases wholesale. Counsel must devise arguments that can win the cases wholesale. This requires greater effort and expense. This requires greater effort and expense.

16 Cost savings is a myth

17 Any Potential Cost Savings is Offset By:

18 MDL 2139: A Recent JPML Denial In Re Ambulatory Pain Pump- Chondrolysis Products Liability Litigation (MDL. No. 2139) was denied transfer on March 14, In Re Ambulatory Pain Pump- Chondrolysis Products Liability Litigation (MDL. No. 2139) was denied transfer on March 14, 2010.

19 MDL 2139: The Panels 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.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.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.

20 Reasons Cited for Denial: Individual issues of causation and liability predominated: Individual issues of causation and liability predominated: Pain pumps vary in size, design, volume capacity, duration and flow capacity. Pain pumps vary in size, design, volume capacity, duration and flow capacity. The same anesthetic was not used in all surgeries. The same anesthetic was not used in all surgeries. Plaintiffs have different medical histories that bear on causation. Plaintiffs have different medical histories that bear on causation. Diverse procedural stages Diverse procedural stages Fact discovery was either over or nearly over in many cases. Fact discovery was either over or nearly over in many cases. Expert discovery was underway or had been completed in many cases. Expert discovery was underway or had been completed in many cases.

21 A Different Perspective

22 But What About MDL 1553? Oh, I think I saw that movie…. Wait a minute, was I in that movie??

23 The inspiring true story of courageous Judge Jack and a screening scam that will leave you… scandalized.

24 In Re Silica Products Liability Litigation For-profit screening company with no medical training generated 6,757 For-profit screening company with no medical training generated 6,757 MDL Silicosis claims. MDL Silicosis claims. 9,083 MDL plaintiffs had been diagnosed by under ten physicians. 9,083 MDL plaintiffs had been diagnosed by under ten physicians.

25 The Medical Evidence Unreliable Exposure Histories Unreliable Exposure Histories devoid of meaningful details -Judge Jack devoid of meaningful details -Judge Jack Unreliable Radiological Opinions Unreliable Radiological Opinions Double Dippers Double Dippers Unreliable Differential Diagnoses Unreliable Differential Diagnoses it is clear that [the doctor] had an agenda: diagnose silicosis and nothing else -Judge Jack it is clear that [the doctor] had an agenda: diagnose silicosis and nothing else -Judge Jack

26 … 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. Judge Jack

27 Efficiency Breeds Economy Cost Savings Fewer Depositions Less Travel Fewer Documents Fewer Motions Less time away from work for employees

28 Consolidation Means Consistency Minimizes disparate rulings on identical subject matter. Minimizes disparate rulings on identical subject matter. Encourages coordination between state and federal courts on common pretrial issues. Encourages coordination between state and federal courts on common pretrial issues. Judge may appoint a Special Master. Judge may appoint a Special Master.

29 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).

30 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. 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. If your case is transferred to an MDL, settlement will be the likely disposition. MDL Judges tend to be proactive. MDL Judges tend to be proactive. Parties already convened- just need dialogue. Parties already convened- just need dialogue.

31 MDL AHEAD

32 Now What? Parties only have two limited opportunities to influence the JPMLs selection of transferee district and judge: Parties only have two limited opportunities to influence the JPMLs selection of transferee district and judge: A 20 page brief, and A 20 page brief, and 1 to 5 minutes for oral argument. 1 to 5 minutes for oral argument. Thus, it is important to have a strategy for MDL transfer from the outset. Thus, it is important to have a strategy for MDL transfer from the outset.

33 A Real Advocacy Challenge Counsel opposing consolidation must argue against transfer but then for a particular district in the event transfer is ordered. 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. Early research is the key to developing arguments in opposition that do not contradict transfer to your desired transferee district.

34 What Does the JPML Consider ? Number and complexity of actions Number and complexity of actions How many potential tag-along actions there are. How many potential tag-along actions there are. The fewer the cases, the more complex the issues must be to warrant transfer. The fewer the cases, the more complex the issues must be to warrant transfer. Procedural stage of the cases Procedural stage of the cases Transfer is more likely for cases in early procedural stage. 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. For cases nearing trial, or in a wide variety of different procedural stages, transfer is less likely.

35 What Does the JPML Consider ? Opportunity to coordinate with other proceedings Opportunity to coordinate with other proceedings Forum where federal/state coordination can be most extensive. Forum where federal/state coordination can be most extensive. Experience of judge Experience of judge Experience with other MDLs. Experience with other MDLs. Experience with the subject matter of the litigation. Experience with the subject matter of the litigation.

36 What Does the JPML Consider ? Docket conditions of transferee judge Docket conditions of transferee judge and district and district Caseload and resources to handle massive, complex litigation. Caseload and resources to handle massive, complex litigation. Preferences of the parties Preferences of the parties Not dispositive, but can be persuasive. Not dispositive, but can be persuasive. Geographic location of district Geographic location of district Proximity to important witnesses, company operations, evidence or important parties. Proximity to important witnesses, company operations, evidence or important parties.

37 JPML Decisions: A Closer Look One article undertook an analysis of over 300 JPML transfer orders from to look at what factors the Panel cited for various types of cases. One article undertook an analysis of over 300 JPML transfer orders from 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 Litigations Selection of Transferee District and Judge, 78 Fordham L. Rev. 311, 331 (2009).

38 JPML Decisions: A Closer Look Additional factors considered may vary depending upon the type of case. 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. 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. Experience of the judge was cited twice as often in sales practices cases. Proximity of district to events of lawsuit- unsurprisingly- was most often cited in air disaster cases. Proximity of district to events of lawsuit- unsurprisingly- was most often cited in air disaster cases.

39 The Bottom Line Whether or where the JPML will transfer cannot be predicted with certainty. Whether or where the JPML will transfer cannot be predicted with certainty. Focus early research and strategy development on the where question. 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. A hands on judge who has experience aggressively managing complex litigation is the linchpin to a successful MDL.


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