Where's the MDL Panel Meeting Today? Read On to Find Out

For months, it's been my goal to educate the rest of the country about the ins and outs of the semi-secret panel of federal judges who are in charge of complex federal litigation--the so-called Judicial Panel on Multidistrict Litigation.  You know, the "MDL Panel."  You can read some of my posts about the MDL Panel (if you dare) by looking here. 

Today, the MDL Panel is meeting in Dallas, Texas (pdf).  If you still don't understand how it works, you're not alone.  Even the Wall Street Journal doesn't understand the MDL Panel.  Yesterday on page B1, for example, I saw this article: "Preparing for Vioxx Suits, Both Sides Seek Friendly Venues."  It doesn't matter that the article isn't available online for free: it was filled with errors from start to finish!

According to the article, Merck has asked "a judicial panel"--that's what the reporter calls the MDL panel--to "move the nearly 80 federal Vioxx cases filed around the country into one court, the U.S. District Court in Maryland."  So far, so good.  Merck wants the consolidated federal Vioxx cases to be moved to Maryland.  The article also says that a lot of plaintiffs' lawyers disagree and want the panel to move the cases to the U.S. District Court in Houston.

The errors start when the reporter trots out a law professor for a quote.  (Remember, good-hearted readers: sometimes even law professors are ignorant of the law.)  According to the law professor, the plaintiffs' lawyers favor South Texas as a venue for the federal Vioxx cases because the juries there are so generous. 

But wait a minute!  Juries have nothing to do with it.  Under the rules of the MDL, the cases will only be transferred to Texas for discovery and pre-trial rulings.  After that's completed, the cases will be remanded back to the federal courts in which they were originally filed. The well-intentioned professor has it all wrong: the transferred Vioxx cases aren't tried in front of the transferee judge.

The reporter made some errors too.  For example, the article implied that the MDL judges must transfer the federal Vioxx cases to one of the courts requested by the parties--maybe Maryland, maybe Texas, maybe a venue requested by other plaintiffs' lawyers.  Wrong!  Remember, the MDL panel is omnipotent.  It can send the federal Vioxx cases anywhere it wants.  It can send them to Fargo.  It can send them to Alaska.  And it's no exaggeration: cases are frequently transferred to forums that weren't suggested by any of the lawyers.

So why do the plaintiffs' lawyers mentioned in the Wall Street Journal want the federal Vioxx cases to go to Houston if it's not about the juries?  You won't learn the answer in the WSJ, but here are a few things that might be happening:

• The lawyers arguing for Houston are from Houston, have agreed on a structure for the "Plaintiffs Management Committee," and think a hometown federal judge will be more likely to approve their plan over those of out-of-town competitors.  (Remember, if you're a plaintiffs' lawyer playing the MDL game, everything hinges on getting a good role on the PMC);
• The lawyers arguing for Houston think they will receive favorable discovery and pre-trial rulings from whichever judge in Houston is chosen by the MDL Panel to get the case;
• The lawyers arguing for Houston might be thinking several steps ahead to appeals of pre-trial rulings such as an approval of a class-action settlement agreement; in this case, they might favor an appeal to the 5th Circuit over other federal forums.

The Wall Street Journal also botches the explanation as to how some lawyers are attempting to keep cases in state courts.  You can't do it simply by filing cases under "statutes of consumer protection," as the WSJ says.  It would be nice if the reporter would have gotten that part of the story right, since plaintiffs' lawyers who are creative enough to keep cases in state courts are the ones who will really excel in the Vioxx litigation.

When will the MDL Panel be making its decision about the federal Vioxx litigation?  It won't be today in Dallas but in January at a location to be announced.  I'll keep you posted.  If you want a more lawyerly explanation of MDL procedures in the meantime, see my (much shorter) post today at The Illinois Trial Practice Weblog.

UPDATE 11/19/04. The word on the street is that the Vioxx litigation won't be on the January MDL docket as I reported in the last paragraph of this post.  I might still turn out to be correct, however, since a group of plaintiffs' lawyers has filed a motion asking that the MDL Panel expedite the pending Vioxx motions by placing them on the January docket.  (Thanks to John Carey.)

UPDATE 2/14/04. For all of my collected Vioxx posts, look here. If you are (a) someone who was harmed by Vioxx or (b) a lawyer who wants to refer your Vioxx cases to a highly-competent team of mass-tort lawyers, look here.

Comments

[Al Nye]

Thanks for setting the record straight!

Al Nye

[Bill Childs]

I actually wouldn't say he has it all wrong. While non-local cases will, of course, be remanded to the original jurisdiction once pretrial stuff is done, MDL judges do from time to time seek to try test cases to facilitate settlement processes. See, for example, the Baycol MDL, in which Judge Davis has been trying to get resident plaintiff cases tried for nearly two years, even though the cases are not being remanded any time soon.

If I were a Vioxx plaintiff's lawyer (I'm merely a well-intentioned law professor), and if I wanted to be in the MDL at all (I wouldn't), I'd love to have the MDL in south Texas and push for an early local trial in front of the MDL judge. Madison County wouldn't be such a bad place to be either. Sure, Merck could argue that any jury verdict wasn't representative or relevant for settlement purposes, but the market wouldn't listen and the not insignificant goal of putting more pressure on for good settlements would be achieved.