LEGAL NEWSLINE

PHILADELPHIA (Legal Newsline) - When U.S. District Judge Eduardo C. Robreno was appointed to handle the Asbestos Products Liability Litigation in October 2008, he was startled by the magnitude of the case.

He discovered that at the time, it was the largest and second-oldest multidistrict litigation (MDL). He supervised the transfer of nearly 108,000 cases to his courtroom in the Eastern District of Pennsylvania, and added around 80,000 more after severing the many multi-plaintiff cases.

"In a mass tort case, unlike a number of other MDLs, which may be class actions where the issues are class-wide, you really have individual cases, and each plaintiff and each defendant is entitled to having their case adjudicated or settled on an individual basis," Robreno said. "That created a tremendous administrative challenge."

Robreno met that challenge and cut the Asbestos Products Liability Litigation to about 6,000 cases over the past three years. He credits the MDL process, in which similar cases filed in different federal courts are transferred to one federal court for pretrial proceedings, for resolving the vast number of cases.

According to the U.S. Judicial Panel on Multidistrict Litigation, a group of seven appointed federal judges that decides when to coordinate MDL cases and where to transfer them, a total of 286 MDL dockets with 67,502 pending cases existed as of March 5, 2013. Nearly 5 percent of those dockets included more than 1,000 cases.

For many judges, lawyers and legal scholars, the path MDLs take becomes an intriguing part of the process. Many cases will settle in the transferee court, while others will be remanded to the transferor court, or original court, for trial. Other options like permitting MDL judges to try cases may also be in the works.

Michelle Hart Yeary, counsel at Dechert LLP, started her career as national counsel for a medical device manufacturer in the Orthopedic Bone Screw Products Liability Litigation in the Eastern District of Pennsylvania in the 1990s. She finds that MDL judges use bellwether trials and Daubert hearings, and tackle large, potentially game-changing issues, to move litigation forward. In most cases, these are tools that pressure both sides of a MDL to settle.

Yeary points to alternative dispute resolution as another tool that often promotes settlement. In the Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practice, and Products Liability Litigation in the Central District of California, retired judges handled some of the discovery disputes and settlement discussions, and helped streamline the process. The MDL resulted in a $1.3 billion settlement in December.

"When you're looking at different approaches, it's not written anywhere, but I would be surprised if any judge who has a MDL wouldn't say a primary objective is settlement," she said. "Most parties probably have that as one of their possible goals."

Richard Marcus, a professor at the University of California Hastings College of the Law, and other scholars take interest in the cooperation between state and federal courts, and its effect on MDL settlements. In particular, he refers to the Vioxx Marketing, Sales Practices and Products Liability Litigation in the Eastern District of Louisiana, which once surpassed 10,000 cases. It now has 564 pending cases.

Marcus contends that the Vioxx MDL resulted in a $4.85 billion settlement after U.S. District Judge Eldon E. Fallon collaborated with state judges in California, New Jersey and Texas who had similar cases. He says Fallon also took innovative, and what some would call overreaching, steps to implement the settlement.

"That implementation included the federal judge's role in regulating attorneys' fees and ordering payment of them to lead and liaison counsel, and the requirement that lawyers in essence 'fire' their clients if the clients decline the settlement," Marcus said. "The latter may have contributed to the very high buy-in to the settlement."

Yeary points out that settling and remanding MDLs involve their own issues. If a MDL judge helps reach a settlement, they need to decide how to administer that settlement. But if the judge remands the cases, parties may face the "past is prologue" problem.

"Multiple judges are confronting these cases that, technically, are procedurally at the same point in time," she said. "They've all gotten to the same place, and now they scattered. What each individual court or judge does with them can be very different."

Yeary developed an interest in remanded MDLs and began following the Aredia and Zometa Products Liability Litigation in the Middle District of Tennessee. After remand, defendants faced the potential for conflicting rulings as well as plaintiffs who wanted to reopen issues already decided by the MDL judge.

Yeary admits plaintiffs' lawyers encounter problems in remanded MDL cases, too. Lawyers who weren't key players in the MDL must catch up on the issues once their case returns to its original court. They may also face difficulty in scheduling lead experts for their case when hundreds of other plaintiffs need them at the same time.

From Robreno's perspective, the MDL process gives plaintiffs and defendants more options for addressing and adjudicating their cases quickly and efficiently. Even though the Asbestos Products Liability Litigation fell into a "state of repose" for several years, the cases are finally making progress.

"Each of the cases is now under a scheduling order and is proceeding to either settlement or remand for trial," he said. "We are seeing results in some of the cases that we are remanding. The orderly process, I think, is working well now."

Robreno believes MDLs could further benefit from a third option for resolving cases. He encourages Congress to decide whether MDL judges can try cases in their districts rather than remanding them for trial in transferor courts. Currently, parties in the MDL must give consent before a MDL judge can try their cases.

"The Judicial Conference of the United States has taken the position that Congress should amend Title 28 to provide that the transferee court, namely the MDL, should have that authority," he said. "If that power is used with discretion, I think in the appropriate cases, it may be one way of refining the process."