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A federal panel whose members are handpicked by the chief justice of the U.S. Supreme Court to consolidate federal civil cases for discovery is playing an increasingly influential role in how and where large numbers of complex civil cases are litigated throughout the United States. The seven-member Judicial Panel on Multidistrict Litigation decides whether to centralize related cases from different districts as multidistrict litigation for pretrial proceedings. It also decides to which single federal district the cases should be transferred. The panel does not make substantive rulings on cases. Instead it routes cases from multiple federal districts to a single judge in order to reduce duplicative and conflicting discovery and to effect a global settlement, if possible. Cases are sent back to their original district courts for trial if they are not settled. The task of the judicial panel is to make overlapping federal cases, such as products liability, common disaster, antitrust and securities cases, efficient and economical for the parties, their lawyers and the judiciary. Tens of thousands of federal civil actions have passed through its hands since it was established in 1968. Senior Judge William Terrell Hodges of the Middle District of Florida, the panel’s current chairman, has compared the panel’s role to that of a “traffic cop,” in that it decides only whether to centralize cases that share common issues of fact and law as an MDL, and where that MDL should go. Certain criteria help the panel reach its decisions, such as where the most mature case is pending, the relative expertise and caseload of the district court to which it wants to send the MDL, as well as the geographic convenience of the parties, counsel and court. While efficiency in litigation of many claims is the panel’s goal, some lawyers say that the consolidated multidistrict litigation can end up in a court far removed from where any of the parties choose. And other observers voice concern over the lack of transparency in how the chief justice decides who will sit on the judicial panel itself. From 1968 to 2001, 170,690 civil actions � almost three quarters of which were asbestos, breast implant and Bridgestone/Firestone Tire cases � were centralized into 924 MDLs for pretrial proceedings. Almost 80 percent of those MDLs were concluded during that period, according to the panel’s statistics. Since 2001, the total number of cases subject to MDL proceedings increased by a quarter, from 170,690 to 245,986 in September 2006. The 38,179 cases pending in districts around the country in 2001 nearly doubled by 2006, to 75,660 in 250 MDLs, according to the judicial panel’s statistics. VIOXX, PREMPRO CASES About half of the actions pending last fall were asbestos cases, and nearly a third were Vioxx, Prempro and 10 other products liability mass torts over drugs. Where the cases end up as an MDL can make a difference � whether in a district favored by the defense or the plaintiff, or in a district of the panel’s choice. And though parallel litigation can be more advanced in certain state courts, the Class Action Fairness Act of 2005, which extended federal court jurisdiction over state class action litigation, and the panel’s growing tendency to create MDLs from related individual cases and class actions, have helped to make federal MDLs the leading forum for mass torts. Edward Sherman, a law professor at Tulane University Law School in New Orleans, said that increasing numbers of environmental, pharmaceutical and products liability cases in the last 20 years have made the panel more likely to centralize cases. “If you can get a global settlement out of an MDL, you’ve realized an enormous savings of judicial time and effort,” Sherman said, adding that few cases transferred to MDLs go to trial. The panel’s success in consolidating pretrial proceedings has helped to convince at least 15 states to create their own regimes for handling mass litigation. As states have created their own multidistrict litigation dockets, federal MDL judges increasingly have coordinated their pretrial proceedings with state judges presiding over state multidistrict litigation. Sherman noted a growing cooperation between federal and state courts looking at the same types of cases. He pointed to the intercourt communication between U.S. District Judge Eldon Fallon, presiding over the federal Vioxx MDL, and Atlantic County, N.J., Superior Court Judge Carol Higbee, overseeing New Jersey’s Vioxx state MDL, concerning Vioxx discovery issues. But there are questions and criticisms about the panel, as well as some apprehension expressed over the potential for abuse of power. Lawyers say that while the panel does not appear to be either pro-plaintiff or pro-defense, it has the authority to send an MDL wherever it wants. Sometimes MDLs go to panel members themselves or to their districts, and sometimes MDLs go to districts far from either side’s beaten track � to the puzzlement of lawyers who appear before the panel. (These lawyers are reluctant to speak for attribution because of their ongoing work before the panel.)
Because the chief justice gives no written or oral reasons or justifications for his appointments, ‘nobody outside the judiciary knows how or why the chief justice makes his selections for special tribunals.’

Theodore Ruger University of Pennsylvania Law School

In addition, while no one has alleged bias in the chief justices’ appointees to the judicial panel so far, a lack of transparency in the selection process feeds speculation that a chief justice could pick those whose judicial and ideological temperaments best suit his own. There do seem to be some patterns as to where the consolidated cases end up. The judicial panel has sent the most MDLs to the Southern District of New York in Manhattan, which has concluded 88 MDLs transferred to it between September 1968 and October 2006, and had 45 MDLs pending as of last September. The Central District of California in Los Angeles is in second place, with 69 concluded MDLs and nine MDLs pending. The Eastern District of Pennsylvania in Philadelphia is third, with 58 MDLs concluded and 17 MDLs pending as of last September. This district has handled the largest number of individual cases � a total of 136,245 from September 1968 to last October � by virtue of having been assigned the asbestos MDL: 35,033 of its pending 47,293 cases are asbestos cases. Mark Herrmann, a partner in Jones Day’s Cleveland office whose defense practice includes MDLs, said that the panel generally follows its established rules and precedents. When the parties agree, the panel sends the cases to the forum they request. But when they disagree and, especially, when lawyers start badmouthing judges at each other’s forums of choice, the panel sometimes will “ship ‘em to Mars,” said Herrmann, who co-writes a blog on MDL-related issues. The panel became impatient with the parties’ forum squabbling in the breast implant MDL, and sent the cases neither to the plaintiffs’ choice, San Francisco, nor to Cincinnati, the defense choice, but to Birmingham, Ala. Silicone Gel Breast Implants Products Liability Litigation (MDL 926). Arnold Levin, of Levin, Fishbein, Sedran & Berman, a Philadelphia-based plaintiffs’ practice who was involved in the breast-implant MDL and many others, agreed with Herrmann that the process works when the parties agree where the cases should go. On the other hand, the panel “can almost justify sending a case anywhere they want to send it, and they do,” said Levin � not infrequently to their own districts. Several lawyers noted along with Levin that panel judges on occasion have taken MDLs to their own districts for pretrial proceedings. This is within the panel’s authority, and no lawyer complained that judges who took MDLs to their own districts mishandled the proceedings. THE ‘LEXECON’ RULING Although most cases settle in the course of MDL proceedings, the Supreme Court has held that the law does not allow MDL judges to assign out-of-district cases to themselves for trial. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach 523 U.S. 26 (1998). Since Lexecon, some courts and parties have gotten around this ruling by refiling cases in the MDL jurisdiction. The parties work with the court to establish an expedited trial schedule of bellwether cases to give the court and the parties an idea of what the litigation is worth for purposes of negotiating a global settlement. This happened in the Vioxx MDL in New Orleans. Although the bulk of nearly 7,000 cases technically are pending pretrial proceedings, five bellwether cases already have gone to verdict � several of which the plaintiffs agreed to dismiss in their original jurisdictions and to refile in New Orleans so that Fallon could try them. But for some, the key question about this increasingly important panel is: Who is minding the store? Congress gave the chief justice of the Supreme Court the discretion to appoint seven members to the panel, each from a different federal circuit. Sitting as a special tribunal, the panel assigns cases to all 13 circuits. Chief Justice William Rehnquist reorganized the panel in June 2000 so that panelists would serve seven-year terms, staggered to ensure continuity, according to an official court publication. Under these guidelines, Chief Justice John Roberts, could appoint two new members this year. A ‘BLACK BOX’ Theodore Ruger, a professor at the University of Pennsylvania Law School in Philadelphia who has written about Rehnquist’s appointments to this and other federal special tribunals, called the appointment process “a black box.” Because the chief justice gives no written or oral reasons or justifications for his appointments, “nobody outside the judiciary knows how or why the chief justice makes his selections for special tribunals,” Ruger said. Though Ruger has not detected a clear bias in his studies of chief justices’ appointees to special courts, he thinks that the process would benefit from greater transparency. The chief justice could announce the names of several judges he is considering or involve the judicial conference or bar groups as part of the process, he said. The current members of the panel were all appointed to the district and circuit benches by Republican presidents. The appointees continue to serve in their districts or circuits. Three of the current seven panel members are senior status judges, one is a circuit court chief judge and one a district court chief judge. All but two judges have experience handling federal MDLs in their home districts, according to records collected on the judicial panel’s Web site. U.S. District Judge J. Frederick Motz of the District of Maryland, appointed to the panel in July 2001, has been the transferee judge for five MDLs, the most of any current appointee. Pending before Motz now is the Microsoft Windows operating systems antitrust case (MDL 1332). Also pending before him is a collection of actions against mutual fund managers alleging illegal “late trading” and “market timing” (MDL 1586), the latter of which he shares with two judges in his district. Chief Judge Anthony Scirica of the Third Circuit U.S. Court of Appeals, Roberts’ sole appointee, was appointed by President Ronald Reagan to the federal district and circuit benches and was never an MDL transferee judge. He served on the Third Circuit for 15 years with now-U.S. Supreme Court Justice Samuel Alito. Nothing in the statute prevents the chief justice from handpicking judges who share his ideological preferences on the issues that the tribunal is created to resolve, Ruger said. But he is hard-pressed to find any such patterns in his study of Rehnquist’s appointees to the Foreign Intelligence Surveillance Act court. “Rehnquist was a strategist. He was careful to be evenhanded in selection to the FISA court. The judges he selected were a cross-section of the court, which gave his appointments to the FISA court the appearance of evenhandedness,” Ruger said. Peter Geier is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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