Monday, September 22, 2008

A Multidistrict Litigation Compendium

We've been thinking about MDL practice the last couple of weeks, and we've decided to do a wrap-up post on that subject. Here's everything you need to know about the Judicial Panel on Multidistrict Litigation.

We have a link to the MDL Panel's website over in the right-hand column of this blog. For your convenience, here's another link to that website. There's an awful lot of useful information there.

In addition to linking to the MDL Panel website, we published "An MDL Bibliography" on this blog nearly two years ago. That was a good resource then (if we do say so ourselves), and it remains a good resource today -- it identifies the leading book and most of the leading articles describing the MDL process.

We'll take this opportunity to update that slightly dated bibliography with two recent noteworthy publications. First, there's the Tulane Law Review symposium issue on "The Problem of Multidistrict Litigation." We posted about that previously, and the articles in that symposium may be useful resources for folks playing in the MDL sandbox.

You'll be startled to hear that we also like the piece that one of your humble scribes co-authored for BNA's Class Action Litigation Report, "Making Book On The MDL Panel: Will It Centralize Your Products Liability Cases?," about which we posted here. (Herrmann's co-author, Pearson Bownas, contributed this follow-up guest post explaining that the Panel played it by the book when it recently denied a motion to centralize the shoulder pain pump litigation.)

James M. Wood, Monique Hunt McWilliams, and Delaney M. Anderson took a different spin on the "Making Book" article in the November 2007 issue of DRI's For The Defense. Their article, "The Selection of a Transferee Court for MDL," looks at how the MDL Panel has historically chosen transferee courts when it decided to centralize cases.

Not surprisingly, we also like the two blog posts that we've published about the MDL Panel in the last couple of weeks. We summarized the MDL Panel's procedure in this post, and we explained how to estimate how long it will take the MDL Panel to decide motions, and how long it will take transferee courts to schedule their first status conferences, here.

[Here's proof that we can look into the future: In 2009, the Federal Judicial Center and MDL Panel published two booklets, "A Guide for Multidistrict Litigation Transferee Judges," and "A Guide for Multidistrict Litigation Transferee Court Clerks." On August 7, 2009, we published this post, which links to where those two publications are available free of charge at the FJC website. Also, on September 1, 2009, we linked to Margaret Williams and Tracey George's "Between Cases and Classes: The Decision to Consolidate Multidistrict Litigation," which analyzes a sample of 90 orders issued by the MDL Panel to determine the most significant factors relied on by the Panel in deciding (1) whether to coordinate cases, (2) choice of transferee court, and (3) choice of transferee judge. ]

For the wrap-up to this wrap-up, we're going on a tour of the web. If you type the words "MDL Panel" into Google, you'll find a bunch of stuff, although its quality and utility is wildly varied. You'll find the MDL Panel itself first, which is a happy result.

And you'll find us -- one of our posts -- second, which we think is awfully nifty.

You'll find the websites of a few defense firms publicizing their MDL experience and, on the other side of the "v.," a few websites hosted by plaintiffs' lawyers describing the MDL Panel or commenting on its processes. Some of that material is pretty good, and some is just plain stupid. We found this, for example, at a fairly prominent blog hosted by a plaintiff's lawyer:

"To receive certification by the MDL Panel, under Rule 23 you must have: (1) plaintiffs so numerous that joinder is impossible (numerosity); (2) class claims which present common questions of law or fact (commonality); (3) plaintiffs' claims that are typical of those of the class (typicality); and (4) plaintiffs who are adequate representatives of the putative class (adequacy)."

Those words show how dangerous it can be to rely on the internet to do legal research. Rule 23 has absolutely nothing to do with the MDL process; centralization by the MDL Panel and certification of a class action are separate events, governed by different rules. The paragraph that we quoted above is dangerous gibberish -- but it's out there.

If you keep searching, you'll find links to news reports about cases that the Panel has centralized, and you'll find links to some of the analogues to the MDL Panel established by state court systems. Here, for example, is a link to the Texas site.

Eventually, you'll find this interview with Judge John Nangle, then Chair of the MDL Panel, that appeared in The Third Branch in 1995. (But we already told you about that one -- we included it in our on-line MDL bibliography.)

And you'll find this post at the CAFA Law Blog, summarizing Judge William Young's decision in Delaventura v. Columbia Acorn Trust. Judge Young expresses concern about some aspects of the multidistrict litigation process. (We'd forgotten about that one; this blogging stuff is good for us.)

You'll also find links to books that mention the MDL Panel, such as Judge Weinstein's Individual Justice In Mass Tort Litigation, and to cases that mention the Panel, such as this one.

And then, if you're like us, you'll give up. Google says we'd have to look at more than a half million websites to plow through all the hits to "MDL Panel" and, much as we love you, dear reader, we don't love you that much.

For the most part, what we found makes us pretty happy with what we're doing here at the Drug and Device Law Blog. If you stick to the links that we gave you in the first seven paragraphs of this post, you'll have virtually everything that you need, and all from sources that are pretty reliable.

Maybe we're doing some good by hosting this blog, after all.

1 comment:

fitzgeralds said...

Thanks for the good read, I will definitely return for an update!

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