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Application of a Universal Law in Multidistrict Litigation

By Daniel J. Herling and James Hess

When product liability cases are consolidated through Multidistrict Litigation (“MDL”) proceedings, the proceedings are rife with complexities, and the obvious temptation for an MDL judge is to streamline and simplify these proceedings as much as possible. MDL judges have many appropriate tools at their disposal, such as case management orders and adoption of uniform discovery requests, to facilitate the proceedings. While certain techniques used to simplify and consolidate are appropriate, application of a “universal law” ' in which one substantive law is applied to cases from various jurisdictions ' is not. Application of a universal law violates due process and places consolidation and expediency above the interests of justice. Such a dangerous proposition was briefly suggested during the Ephedra MDL proceedings, involving hundreds of cases consolidated for pretrial purposes in the Southern District of New York.

Judge Jed S. Rakoff of the Southern District of New York is overseeing the cases consolidated in In re Ephedra Products Liability Litigation, No. 04-1598 (S.D.N.Y) (the “Ephedra MDL Proceeding”). In his Case Management Order No. 6 (“CMO No. 6″), Judge Rakoff invited the parties to the proceeding to make oral presentations as to the possibility of applying the Restatement (Third) of Torts (the “Restatement”) as the universal law applicable to all claims in the Ephedra MDL Proceeding.

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