A Multidistrict Litigation Primer

Part One of this article discussed the basics of multidistrict litigation. The conclusion herein describes the Judicial panel on Multidistrict Litigation (JPML).

What Is the JPML?

The Judicial Panel on Multidistrict Litigation is usually comprised of seven members ' circuit and district court judges ' who are appointed by the Chief Justice, no two of whom may come from the same circuit. 28 U.S.C. ' 1407(d). The concurrence of four members is required for any action by the JPML. Id. The current members of the JPML, as of August 2008, are: Judge John G. Heyburn II, Chairman (United States District Court, Western District of Kentucky); Judge J. Frederick Motz (United States District Court, District of Maryland); Judge Robert L. Miller, Jr. (United States District Court, Northern District of Indiana); Judge David R. Hansen (United States Court of Appeals, Eighth Circuit); and Judge Kathryn H. Vratil (United States District Court, District of Kansas). The JPML is based in Washington, DC, but hearing sessions and oral arguments may be heard in federal courts across the U.S. Over the past several years, hearing sessions and oral arguments in front of the JPML have taken place every other month (in January, March, May, July, September, and November). See www.jpml.uscourts.gov/Hearing_Info/hearing_info.html.

What Is the Function of the JPML?

The function of the JPML is important, but limited. Generally speaking, and discussed in more detail, infra, the JPML's mission is to answer the following questions: 1) Should there be an MDL? 2) If so, where should the MDL be located? and 3) What cases should be transferred into the MDL?

The JPML has been described as the “gatekeeper” of multidistrict litigation. Administrative Office of the United States Courts, “Chair of Judicial Panel Sees Role as Gatekeeper,” The Third Branch, Vol. 37, Number 11 (November 2005), available at www.uscourts.gov/ttb/nov05ttb/gatekeeper/index.html. The JPML does not become involved in the merits of the underlying claims or disputes in multidistrict litigation; rather, the members of the JPML “are the gatekeepers, deciding whether certain litigation should be let through the gates, so to speak, and, if so, where it should go. After that, it is entirely within the prerogative of the transferee judge to manage the litigation and make all procedural and substantive rulings the case might require in a pretrial context.” Id.

According the JPML Web site, “[t]he job of the Panel is to 1) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and 2) select the judge or judges and court assigned to conduct such proceedings. The purposes of this transfer or 'centralization' process are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary. Transferred actions not terminated in the transferee district are remanded to their originating transferor districts by the Panel at or before the conclusion of centralized pretrial proceedings.” See www.jpml.uscourts.gov.

Should There Be MDL?

The JPML's primary function is to determine whether to establish MDL. As discussed, supra, MDL can be initiated by the JPML on its own initiative or through a motion to centralize brought by a party to any action in which transfer for coordinated or consolidated pretrial proceedings may be appropriate. 28 U.S.C. ' 1407(c)(i), (ii). When centralization is contemplated, the JPML will provide notice to the parties in all actions that may be affected. This notice will specify the time and place for any hearing to determine whether to establish MDL. Id. In addition, the notice may state the following regarding the scope of oral arguments: “The panel insists that counsel limit all oral argument to the appropriate criteria. See generally, In re “East of the Rockies” Concrete Pipe Antitrust Litigation, 302 F. Supp. 244, 255-56 (concurring opinion) (discussion concerning criteria for transfer).” Notice of Hearing Session, dated June 19, 2008, at 26, available at www.jpml.uscourts.gov/Hearing_Info/Hearing_Order7-31-08.pdf. Based on the recent Notice of Hearing Session cited above, it is apparent that the “East of the Rockies” case, and its “ discussion concerning criteria for transfer,” is a seminal case in the eyes of the JPML. In relevant part, the concurring opinion in “East of the Rockies” states as follows:

The basic question before the Panel in each proceeding looking to coordinated or consolidated pretrial is, then, whether the objectives of the statute are sufficiently served to justify the necessary inconveniences of transfer and remand. Many factors are relevant to the answer. Some will be applicable to all proceedings under that statute; some will not. Some will count heavily in some proceedings; lightly in others. It will be useful ' for illustration, if nothing more ' to articulate some of these considerations.

How many common questions of fact are there? What is their nature? How many cases are presently and prospectively involved? What is the geographical location of the districts in which the cases pend? If it is anticipated that further cases will be filed, in what districts? Who are the principal witnesses in the cases and where do they reside? What detriment, financial or otherwise, will be imposed upon any of the parties by ordering transfer? Will transfer result in a substantial saving of duplicative work? Will transfer usefully avoid conflicting rulings in the pretrial proceedings of the cases involved? Can many of the advantages of transfer be worked out by cooperation among counsel without transfer? Are pretrial proceedings already far along in any one or more of the cases? Will transfer hasten or delay progress in the cases? What is the availability of the judge or judges in the proposed transferee court or courts? Will the advantages of transfer overcome the normal desirability of having the same judge who conducts the trial also conduct pretrial proceedings? Will transfer impede or promote the prospect of settlements? Will transfer serve any ulterior motive of any party or parties, such as forum shopping? If class actions are involved, will transfer make for complexity or for simplification? Will transfer unjustly delay or deny any party's right to provisional remedies such as injunctive relief? What is the status and possible effect of any appeals pending in any of the cases? Will transfer operate to eliminate or avoid an undesirable multiplicity of appeals on similar issues?

In re “East of the Rockies” Concrete Pipe Antitrust Litigation, 302 F. Supp. 244, 255-56 (J.P.M.L. 1969) (concurring opinion) (internal citations omitted). The broad, fact-specific questions posed in “East of the Rockies” show that the determination regarding the establishment of MDL is a litigation-by-litigation analysis that depends on the facts and circumstances of each particular litigation.

Where Should the MDL Be Located?

If the JPML decides that centralization is appropriate under 28 U.S.C. ' 1407, its next function is to determine where the MDL should be located by selecting the transferee district and the transferee judge. Similar to the determination regarding the establishment of MDL, determining the location of the MDL is a litigation-by-litigation analysis that depends on the facts and circumstances of each particular litigation. According to former JPML Chairman Judge Wm. Terrell Hodges (2000-2007), there are no hard and fast rules about picking the judge who will preside over the MDL:

Normally, we would first look to those judges who already have pending before them one or more of the constituent actions that would be involved in the multidistrict docket. If we see that there is a judge in a given district who already has one or more of these cases, or indeed has more of them on his or her own docket than other judges, that would identify that judge as a probable transferee judge, if he or she would consent.

But we also consider such things as the experience of the judge. We wouldn't normally ask a brand-new judge to take on a multidistrict litigation. Not that they couldn't handle it, but it would be more of an imposition probably on that judge in preparing for the litigation than it would on judges with more experience. And we also look at the workload of the district and the transferee judge. If it's a heavily burdened district, then the transfer of a case there could impose an inordinate burden on the clerk because the handling of a multidistrict litigation does increase not only the work of the court and the judge, but especially the clerk. And we would look at the judge's caseload. If it appears that the judge already has a substantial caseload, so that it would be an imposition or a burden to ask him or her to take on the extra work involved, then we might look elsewhere.

Administrative Office of the United States Courts, “Chair of Judicial Panel Sees Role as Gatekeeper,” The Third Branch, Vol. 37, Number 11 (November 2005), available at www.uscourts.gov/ttb/nov05ttb/gatekeeper/index.html.

In addition to the location of constituent cases, the experience of the judge, the workload of the district and the workload of the judge, some of the other factors that the JPML may consider include: the location of the evidence, the place of the tortious event, the location of the parties and witnesses, the size of the cases, the nature of the pending cases, coordination with other federal proceedings, coordination with state proceedings, the familiarity of the judge with the issues, the preference of the parties and the relative advancement of the cases. See David F. Herr, Multidistrict Litigation Manual, at 177-225 (Thompson/West 2007). These factors, based on prior transfer orders issued by the JPML, are exemplary, not exhaustive, and “[t]he Panel has never articulated a 'formula' or standard used to balance the various factors relating to selecting a transferee district.” Id. at 213. In addition, many of these factors overlap with the factors in “East of the Rockies,” discussed supra.

What Cases Can be Transferred into the MDL?

The Initial Transfer of Cases

If the JPML determines that centralization is appropriate, the MDL will be established through an initial transfer order that specifies: 1) what pending cases will be transferred; 2) the district court where the cases will be transferred; and 3) which judge will preside over the MDL. As for the initial cases to be transferred, only pending cases in separate districts that were listed in the motion for transfer will be transferred to the MDL at the time the transfer order is issued. Related cases that are filed after the motion for transfer will be treated as potential “tag-along” cases, discussed infra. See, e.g., Transfer Order, In re Vytorin/Zetia Marketing, Sales Practices and Products Liability Litigation (J.P.M.L. April 8, 2008), available at www.jpml.uscouts.gov/MDL_Info/MDL_1938-TransferOrder.pdf; see also RULES OF PROC. J.P.M.L. R. 7.5(d).

Subsequent Transfer of Cases

Additional cases can be transferred to the MDL after it is established. These additional cases are called “tag-along” actions. The transfer of tag-along actions is governed by the Rules of Procedure of the Judicial Panel on Multidistrict Litigation (the “JPML Rules”), available at 199 F.R.D. 425 (2001), or www.jpml.uscourts.gov/Rules_Procedures/rules_procedures.html. A tag-along action is defined as “a civil action pending in a district court and involving common questions of fact with actions previously transferred under Section 1407.” RULES OF PROC. J.P.M.L. R. 1.1. Upon learning of a tag-along action, the Clerk of the JPML may issue a conditional transfer order, but “in order to afford all parties the opportunity to oppose transfer, [the Clerk of the JPML] shall not send the order to the clerk of the transferee district court for fifteen days ' ” RULES OF PROC. J.P.M.L. R. 7.4(a). If an opposition to conditional transfer is filed, the JPML may or may not permit oral argument regarding transfer, discussed infra. Conditional transfer orders do not become effective unless and until they are filed with the clerk of the transferee district court. RULES OF PROC. J.P.M.L. R. 7.4(e).

Practice Before the JPML

General practice before the JPML is also governed by the JPML Rules. In addition to tag-along actions, the JPML Rules govern, inter alia, the filing of papers, motion practice, and oral argument before the JPML. Regarding oral argument before the panel, a few of the JPML Rules are worth noting here.

First, “[n]o transfer or remand determination regarding any action pending in the district court shall be made by the Panel when any party timely opposes such transfer or remand unless a hearing session has been held for the presentation of oral argument except that the Panel may dispense with oral argument if it determines that: (i) the dispositive issue(s) have been authoritatively decided; or (ii) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” Second, “[e]xcept for leave of the Panel on a showing of good cause, only those parties to actions scheduled for oral argument who have filed a motion or written response to a motion or order shall be permitted to appear before the panel and present oral argument.” Third, “[c]ounsel for those supporting transfer or remand under Section 1407 and counsel for those opposing such transfer or remand are to confer separately prior to oral argument for the purpose of organizing their arguments and selecting representatives to present all views without duplication.” Fourth, “[u]nless otherwise ordered by the Panel, a maximum of twenty minutes shall be allotted for oral argument in each matter. The time shall be divided equally among those with varying viewpoints. Counsel for the moving party or parties shall generally be heard first.” Finally, [s]o far as practicable and consistent with the purposes of Section 1407, the offering of oral testimony before the panel shall be avoided. Accordingly, the oral testimony shall not be received except upon notice, motion and order of the Panel expressly providing for it.” RULES OF PROC. J.P.M.L. R. 16.1(c), (e) ' (h).

In sum, it seems that the JPML Rules for oral argument are intended to limit, if not discourage, oral argument. This could be because of the sheer number of transfer requests, both initial and tag-along, handled by the JPML and because the JPML only hears oral arguments every two months. Thus, the dynamics of oral argument before the JPML can present some challenges for counsel, if oral argument is granted at all. Typically, only parties who filed a motion or opposition to a motion for transfer can present oral arguments. Of those parties, the limited time for oral argument permitted by the JPML Rules (a maximum of twenty minutes) must be divided between all of the parties, and the parties, who may have disparate interests, must meet and confer in advance of the oral argument to figure out logistics.

As former JPML Chairman Judge Wm. Terrell Hodges (2000-2007) noted in a 2004 interview: “We allow many lawyers one minute [for oral argument]. You know, we're not happy about that, but the press of business requires it. The issues are very narrow and ' we are just traffic cops deciding whether the case should go, and if so, where. We are not making large technically difficult legal substantive decisions.” Gregory Hansel, “Extreme Litigation: An Interview with Judge Wm. Terrell Hodges, Chairman of the Judicial Panel on Multidistrict Litigation,” 19 ME. B. J. 16, 21-22 (Winter, 2004). In addition, Judge Hodges noted in a 2005 interview: “[W]e normally conduct oral argument on the motions for initial centralization ' motions that would, if granted, result in the creation of a new docket. Then afterward, with respect to tag-along actions, unless some unusual question is presented, those are considered by the Panel on the briefs and papers of the parties and oral argument is not heard.” Administrative Office of the United States Courts, “Chair of Judicial Panel Sees Role as Gatekeeper,” The Third Branch, Vol. 37, Number 11 (November 2005), available at www.uscourts.gov/ttb/nov05ttb/gatekeeper/index.html. It remains to be seen if oral argument practice will change significantly under the new JPML Chairman, Judge John G. Heyburn II.

Conclusion

In this day and age of product liability practice, it can be hard, if not impossible, to avoid MDLs. Whether drafting a transfer motion or an opposition to a transfer motion, preparing for a bellwether plaintiff deposition or responding to discovery requests in a state court action that could not be removed to federal court and transferred into the MDL, product liability lawyers should know how their day-to-day assignments tie in to the litigation as a whole. In other words, lawyers need to understand and keep in mind the “big picture.” When it comes to product liability litigation, the “big picture” will often involve MDL.

Kimberly H. Clancy, a member of this newsletter's Board of Editors, is an associate in Sidley Austin's Los Angeles Office. Ms. Clancy practices in all areas of litigation. Her practice emphasizes complex litigation, product liability and class actions. In particular, Ms. Clancy's practice focuses on the defense of pharmaceutical and medical device manufacturers, and she has experience in litigations involving hormone therapy medications, anti-epileptic medications, silicone breast implants, and PCA infusion pumps.

Part One of this article discussed the basics of multidistrict litigation. The conclusion herein describes the Judicial panel on Multidistrict Litigation (JPML).

What Is the JPML?

The Judicial Panel on Multidistrict Litigation is usually comprised of seven members ' circuit and district court judges ' who are appointed by the Chief Justice, no two of whom may come from the same circuit. 28 U.S.C. ' 1407(d). The concurrence of four members is required for any action by the JPML. Id. The current members of the JPML, as of August 2008, are: Judge John G. Heyburn II, Chairman (United States District Court, Western District of Kentucky); Judge J. Frederick Motz (United States District Court, District of Maryland); Judge Robert L. Miller, Jr. (United States District Court, Northern District of Indiana); Judge David R. Hansen (United States Court of Appeals, Eighth Circuit); and Judge Kathryn H. Vratil (United States District Court, District of Kansas). The JPML is based in Washington, DC, but hearing sessions and oral arguments may be heard in federal courts across the U.S. Over the past several years, hearing sessions and oral arguments in front of the JPML have taken place every other month (in January, March, May, July, September, and November). See www.jpml.uscourts.gov/Hearing_Info/hearing_info.html.

What Is the Function of the JPML?

The function of the JPML is important, but limited. Generally speaking, and discussed in more detail, infra, the JPML's mission is to answer the following questions: 1) Should there be an MDL? 2) If so, where should the MDL be located? and 3) What cases should be transferred into the MDL?

The JPML has been described as the “gatekeeper” of multidistrict litigation. Administrative Office of the United States Courts, “Chair of Judicial Panel Sees Role as Gatekeeper,” The Third Branch, Vol. 37, Number 11 (November 2005), available at www.uscourts.gov/ttb/nov05ttb/gatekeeper/index.html. The JPML does not become involved in the merits of the underlying claims or disputes in multidistrict litigation; rather, the members of the JPML “are the gatekeepers, deciding whether certain litigation should be let through the gates, so to speak, and, if so, where it should go. After that, it is entirely within the prerogative of the transferee judge to manage the litigation and make all procedural and substantive rulings the case might require in a pretrial context.” Id.

According the JPML Web site, “[t]he job of the Panel is to 1) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and 2) select the judge or judges and court assigned to conduct such proceedings. The purposes of this transfer or 'centralization' process are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary. Transferred actions not terminated in the transferee district are remanded to their originating transferor districts by the Panel at or before the conclusion of centralized pretrial proceedings.” See www.jpml.uscourts.gov.

Should There Be MDL?

The JPML's primary function is to determine whether to establish MDL. As discussed, supra, MDL can be initiated by the JPML on its own initiative or through a motion to centralize brought by a party to any action in which transfer for coordinated or consolidated pretrial proceedings may be appropriate. 28 U.S.C. ' 1407(c)(i), (ii). When centralization is contemplated, the JPML will provide notice to the parties in all actions that may be affected. This notice will specify the time and place for any hearing to determine whether to establish MDL. Id. In addition, the notice may state the following regarding the scope of oral arguments: “The panel insists that counsel limit all oral argument to the appropriate criteria. See generally, In re “East of the Rockies” Concrete Pipe Antitrust Litigation, 302 F. Supp. 244, 255-56 (concurring opinion) (discussion concerning criteria for transfer).” Notice of Hearing Session, dated June 19, 2008, at 26, available at www.jpml.uscourts.gov/Hearing_Info/Hearing_Order7-31-08.pdf. Based on the recent Notice of Hearing Session cited above, it is apparent that the “East of the Rockies” case, and its “ discussion concerning criteria for transfer,” is a seminal case in the eyes of the JPML. In relevant part, the concurring opinion in “East of the Rockies” states as follows:

The basic question before the Panel in each proceeding looking to coordinated or consolidated pretrial is, then, whether the objectives of the statute are sufficiently served to justify the necessary inconveniences of transfer and remand. Many factors are relevant to the answer. Some will be applicable to all proceedings under that statute; some will not. Some will count heavily in some proceedings; lightly in others. It will be useful ' for illustration, if nothing more ' to articulate some of these considerations.

How many common questions of fact are there? What is their nature? How many cases are presently and prospectively involved? What is the geographical location of the districts in which the cases pend? If it is anticipated that further cases will be filed, in what districts? Who are the principal witnesses in the cases and where do they reside? What detriment, financial or otherwise, will be imposed upon any of the parties by ordering transfer? Will transfer result in a substantial saving of duplicative work? Will transfer usefully avoid conflicting rulings in the pretrial proceedings of the cases involved? Can many of the advantages of transfer be worked out by cooperation among counsel without transfer? Are pretrial proceedings already far along in any one or more of the cases? Will transfer hasten or delay progress in the cases? What is the availability of the judge or judges in the proposed transferee court or courts? Will the advantages of transfer overcome the normal desirability of having the same judge who conducts the trial also conduct pretrial proceedings? Will transfer impede or promote the prospect of settlements? Will transfer serve any ulterior motive of any party or parties, such as forum shopping? If class actions are involved, will transfer make for complexity or for simplification? Will transfer unjustly delay or deny any party's right to provisional remedies such as injunctive relief? What is the status and possible effect of any appeals pending in any of the cases? Will transfer operate to eliminate or avoid an undesirable multiplicity of appeals on similar issues?

In re “East of the Rockies” Concrete Pipe Antitrust Litigation, 302 F. Supp. 244, 255-56 (J.P.M.L. 1969) (concurring opinion) (internal citations omitted). The broad, fact-specific questions posed in “East of the Rockies” show that the determination regarding the establishment of MDL is a litigation-by-litigation analysis that depends on the facts and circumstances of each particular litigation.

Where Should the MDL Be Located?

If the JPML decides that centralization is appropriate under 28 U.S.C. ' 1407, its next function is to determine where the MDL should be located by selecting the transferee district and the transferee judge. Similar to the determination regarding the establishment of MDL, determining the location of the MDL is a litigation-by-litigation analysis that depends on the facts and circumstances of each particular litigation. According to former JPML Chairman Judge Wm. Terrell Hodges (2000-2007), there are no hard and fast rules about picking the judge who will preside over the MDL:

Normally, we would first look to those judges who already have pending before them one or more of the constituent actions that would be involved in the multidistrict docket. If we see that there is a judge in a given district who already has one or more of these cases, or indeed has more of them on his or her own docket than other judges, that would identify that judge as a probable transferee judge, if he or she would consent.

But we also consider such things as the experience of the judge. We wouldn't normally ask a brand-new judge to take on a multidistrict litigation. Not that they couldn't handle it, but it would be more of an imposition probably on that judge in preparing for the litigation than it would on judges with more experience. And we also look at the workload of the district and the transferee judge. If it's a heavily burdened district, then the transfer of a case there could impose an inordinate burden on the clerk because the handling of a multidistrict litigation does increase not only the work of the court and the judge, but especially the clerk. And we would look at the judge's caseload. If it appears that the judge already has a substantial caseload, so that it would be an imposition or a burden to ask him or her to take on the extra work involved, then we might look elsewhere.

Administrative Office of the United States Courts, “Chair of Judicial Panel Sees Role as Gatekeeper,” The Third Branch, Vol. 37, Number 11 (November 2005), available at www.uscourts.gov/ttb/nov05ttb/gatekeeper/index.html.

In addition to the location of constituent cases, the experience of the judge, the workload of the district and the workload of the judge, some of the other factors that the JPML may consider include: the location of the evidence, the place of the tortious event, the location of the parties and witnesses, the size of the cases, the nature of the pending cases, coordination with other federal proceedings, coordination with state proceedings, the familiarity of the judge with the issues, the preference of the parties and the relative advancement of the cases. See David F. Herr, Multidistrict Litigation Manual, at 177-225 (Thompson/West 2007). These factors, based on prior transfer orders issued by the JPML, are exemplary, not exhaustive, and “[t]he Panel has never articulated a 'formula' or standard used to balance the various factors relating to selecting a transferee district.” Id. at 213. In addition, many of these factors overlap with the factors in “East of the Rockies,” discussed supra.

What Cases Can be Transferred into the MDL?

The Initial Transfer of Cases

If the JPML determines that centralization is appropriate, the MDL will be established through an initial transfer order that specifies: 1) what pending cases will be transferred; 2) the district court where the cases will be transferred; and 3) which judge will preside over the MDL. As for the initial cases to be transferred, only pending cases in separate districts that were listed in the motion for transfer will be transferred to the MDL at the time the transfer order is issued. Related cases that are filed after the motion for transfer will be treated as potential “tag-along” cases, discussed infra. See, e.g., Transfer Order, In re Vytorin/Zetia Marketing, Sales Practices and Products Liability Litigation (J.P.M.L. April 8, 2008), available at www.jpml.uscouts.gov/MDL_Info/MDL_1938-TransferOrder.pdf; see also RULES OF PROC. J.P.M.L. R. 7.5(d).

Subsequent Transfer of Cases

Additional cases can be transferred to the MDL after it is established. These additional cases are called “tag-along” actions. The transfer of tag-along actions is governed by the Rules of Procedure of the Judicial Panel on Multidistrict Litigation (the “JPML Rules”), available at 199 F.R.D. 425 (2001), or www.jpml.uscourts.gov/Rules_Procedures/rules_procedures.html. A tag-along action is defined as “a civil action pending in a district court and involving common questions of fact with actions previously transferred under Section 1407.” RULES OF PROC. J.P.M.L. R. 1.1. Upon learning of a tag-along action, the Clerk of the JPML may issue a conditional transfer order, but “in order to afford all parties the opportunity to oppose transfer, [the Clerk of the JPML] shall not send the order to the clerk of the transferee district court for fifteen days ' ” RULES OF PROC. J.P.M.L. R. 7.4(a). If an opposition to conditional transfer is filed, the JPML may or may not permit oral argument regarding transfer, discussed infra. Conditional transfer orders do not become effective unless and until they are filed with the clerk of the transferee district court. RULES OF PROC. J.P.M.L. R. 7.4(e).

Practice Before the JPML

General practice before the JPML is also governed by the JPML Rules. In addition to tag-along actions, the JPML Rules govern, inter alia, the filing of papers, motion practice, and oral argument before the JPML. Regarding oral argument before the panel, a few of the JPML Rules are worth noting here.

First, “[n]o transfer or remand determination regarding any action pending in the district court shall be made by the Panel when any party timely opposes such transfer or remand unless a hearing session has been held for the presentation of oral argument except that the Panel may dispense with oral argument if it determines that: (i) the dispositive issue(s) have been authoritatively decided; or (ii) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” Second, “[e]xcept for leave of the Panel on a showing of good cause, only those parties to actions scheduled for oral argument who have filed a motion or written response to a motion or order shall be permitted to appear before the panel and present oral argument.” Third, “[c]ounsel for those supporting transfer or remand under Section 1407 and counsel for those opposing such transfer or remand are to confer separately prior to oral argument for the purpose of organizing their arguments and selecting representatives to present all views without duplication.” Fourth, “[u]nless otherwise ordered by the Panel, a maximum of twenty minutes shall be allotted for oral argument in each matter. The time shall be divided equally among those with varying viewpoints. Counsel for the moving party or parties shall generally be heard first.” Finally, [s]o far as practicable and consistent with the purposes of Section 1407, the offering of oral testimony before the panel shall be avoided. Accordingly, the oral testimony shall not be received except upon notice, motion and order of the Panel expressly providing for it.” RULES OF PROC. J.P.M.L. R. 16.1(c), (e) ' (h).

In sum, it seems that the JPML Rules for oral argument are intended to limit, if not discourage, oral argument. This could be because of the sheer number of transfer requests, both initial and tag-along, handled by the JPML and because the JPML only hears oral arguments every two months. Thus, the dynamics of oral argument before the JPML can present some challenges for counsel, if oral argument is granted at all. Typically, only parties who filed a motion or opposition to a motion for transfer can present oral arguments. Of those parties, the limited time for oral argument permitted by the JPML Rules (a maximum of twenty minutes) must be divided between all of the parties, and the parties, who may have disparate interests, must meet and confer in advance of the oral argument to figure out logistics.

As former JPML Chairman Judge Wm. Terrell Hodges (2000-2007) noted in a 2004 interview: “We allow many lawyers one minute [for oral argument]. You know, we're not happy about that, but the press of business requires it. The issues are very narrow and ' we are just traffic cops deciding whether the case should go, and if so, where. We are not making large technically difficult legal substantive decisions.” Gregory Hansel, “Extreme Litigation: An Interview with Judge Wm. Terrell Hodges, Chairman of the Judicial Panel on Multidistrict Litigation,” 19 ME. B. J. 16, 21-22 (Winter, 2004). In addition, Judge Hodges noted in a 2005 interview: “[W]e normally conduct oral argument on the motions for initial centralization ' motions that would, if granted, result in the creation of a new docket. Then afterward, with respect to tag-along actions, unless some unusual question is presented, those are considered by the Panel on the briefs and papers of the parties and oral argument is not heard.” Administrative Office of the United States Courts, “Chair of Judicial Panel Sees Role as Gatekeeper,” The Third Branch, Vol. 37, Number 11 (November 2005), available at www.uscourts.gov/ttb/nov05ttb/gatekeeper/index.html. It remains to be seen if oral argument practice will change significantly under the new JPML Chairman, Judge John G. Heyburn II.

Conclusion

In this day and age of product liability practice, it can be hard, if not impossible, to avoid MDLs. Whether drafting a transfer motion or an opposition to a transfer motion, preparing for a bellwether plaintiff deposition or responding to discovery requests in a state court action that could not be removed to federal court and transferred into the MDL, product liability lawyers should know how their day-to-day assignments tie in to the litigation as a whole. In other words, lawyers need to understand and keep in mind the “big picture.” When it comes to product liability litigation, the “big picture” will often involve MDL.

Kimberly H. Clancy, a member of this newsletter's Board of Editors, is an associate in Sidley Austin's Los Angeles Office. Ms. Clancy practices in all areas of litigation. Her practice emphasizes complex litigation, product liability and class actions. In particular, Ms. Clancy's practice focuses on the defense of pharmaceutical and medical device manufacturers, and she has experience in litigations involving hormone therapy medications, anti-epileptic medications, silicone breast implants, and PCA infusion pumps.