More than two dozen lawyers appeared before the U.S. Judicial Panel on Multidistrict Litigation in July to argue where hundreds of lawsuits filed over the Deepwater Horizon oil spill should be consolidated. In a federal courthouse in Boise, Idaho, they spent one hour addressing the devastation the oil spill wrought on the Gulf of Mexico coast. When they filed out, the courtroom was nearly vacant.
The oil spill litigation wasn’t the only topic to be heard that day — 13 additional cases were scheduled for oral arguments before the panel. After that, the panel would have to decide another 15 cases in which lawyers argued in court filings, rather than in person.
The number of cases winding their way through the multidistrict litigation (MDL) process across the country has more than doubled during the past decade, inundating both the MDL panel, which decides where those cases should be consolidated, and the federal judges who ultimately end up handling discovery in such complex cases.
"We’re hearing a greater number of cases, and that has some impact on the work we do," said MDL panel Chairman John G. Heyburn II, a federal judge in the Western District of Kentucky. "We’re trying to make that whole process as efficient as possible."
The panel goes through a step-by-step process in reaching its decision, said U.S. District Judge William Terrell Hodges, chairman of the MDL panel from 2000 to 2007. After the hearing, the panel’s members meet in a closed session, usually on the afternoon of the hearing day. Once the panel agrees on a district and the judge, the chairman calls that judge to see whether he or she is willing to accept the case, Hodges said.
Most say yes. "It’s been an amazing success," said Mark Robinson, a partner at Robinson, Calcagnie & Robinson who is co-chairman on the plaintiffs’ liaison committee for the personal injury and wrongful death cases brought against Toyota Motor Corp. "If these types of cases were progressing individually throughout the 50 states, you are taking up a lot of court time from judges."
That doesn’t mean there isn’t room for change. Earlier this year, Heyburn asked Francis McGovern, a professor at Duke Law School and an expert on multidistrict litigation, to study how the process is working. The project is expected to wrap up by year’s end. "We had never really looked at how well we were doing our job," Heyburn said. "And also we’d never really taken a look at our own procedures to see whether we could do things better."
Meanwhile, the number of cases that have gone through the process has risen in the past decade. During the fiscal year that ended Sept. 30, 2009, more than 22,000 lawsuits went through the MDL system, compared to about 9,500 in fiscal year 2001.
It’s not just the numbers. The biggest change while Hodges served as chairman of the panel was the "gradual increase in the number and complexity and importance of the cases that came before the panel," he said.
"Except for the asbestos cases and breast implant cases, there had not been much litigation of that magnitude before the time I came on the panel," he said. "But after that, there were a number of pharmaceutical cases, such as the Vioxx case and the Ford/Firestone case — quite a number of cases that were well known or had attracted quite a bit of attention around the country. And those had increased."
Some lawyers attributed the rise to the increase in class actions. Lewis "Mike" Eidson, name partner of Colson Hicks Eidson in Coral Gables, Fla., said that more lawyers specialize in class actions than did a decade ago, when MDL cases tended to be restricted to patent infringement, antitrust and securities litigation. "Back in the old days, there was nobody bringing class actions over the Ford Pinto," said Eidson, who is now on the plaintiffs’ liaison committee for the personal injury and wrongful death cases in the Toyota MDL.
Theodore Mayer, co-chairman of the litigation department at New York’s Hughes Hubbard & Reed, represented Merck & Co. Inc. in the MDL over its drug Vioxx, which resulted in a $4.65 billion settlement. He said the MDL docket reflects a growing business opportunity in which plaintiffs’ lawyers stand to garner enormous fees. "They’re in a competitive and lucrative business," he said. "A lot of them have a business model that depends on moving large numbers of cases at a time, and so, to some extent, it’s a function of a business model that’s often worked well."
Lawyers on both sides agree that the plaintiffs’ bar has grown more sophisticated as cases have become more complex and the Internet has increased communication among them.
The heavier docket hasn’t gone unnoticed. According to Heyburn, the panel has worked hard during his three years as chairman to reduce the time it takes to make a decision, beginning from the date on which the first motion gets filed seeking to create an MDL docket. The panel now decides most cases within 90 days of the initial filing — about 60 days less than in past years, according to Heyburn. "We’d like to keep every case decided within 100 days," Heyburn said.
Susan Boland, deputy executive of the MDL panel, said it has added three additional staff attorneys during the past decade to accommodate the increased caseload, has shortened some deadlines and has eliminated the need for oral argument in cases involving existing rather than new MDL dockets, relying instead on briefs.
Some lawyers question the effectiveness of the oral arguments.
"It’s kind of a show more than anything," said Mike Papantonio, a shareholder at Levin Papantonio Thomas Mitchell Echsner Rafferty & Proctor in Pensacola, Fla. "I just don’t put much stock into it."
Not all the lawyers make the best use of the panel’s time, Eidson said. In the Toyota case, for instance, "I heard some very good arguments, and some poor arguments," he said. "I heard some guys with two minutes that had the right exact amount of time, and people who got into Shakespeare and completely waste the judge’s time."
Still, he said, the hearings are worthwhile because they give lawyers the opportunity to speak for their clients.
Heyburn acknowledged that some lawyers waste the panel’s time but said that, overall, the oral arguments are helpful. "One of the things we’re looking at is whether there is a way we could make the arguments more effective. I can’t say at this time that we have found such a way," he said.
Another sticking point: As the caseload increases, more judges find themselves assigned to hear an MDL case, even if they have little to no experience in doing so.
The panel for decades has hosted an annual conference to educate transferee judges on how best to manage their MDL dockets. The conference has become more important in light of the panel’s "casting a broader net" for transferee judges. More than 225 judges have been assigned to an MDL as the caseload has increased, Heyburn said.
U.S. District Judge James Rosenbaum, who retired from the District of Minnesota to join JAMS on Sept. 1, handled three MDL cases during his career. He said transferee judges often informally share tidbits of advice with each other on how to handle procedural issues.
But no two MDL dockets are alike. "It’s not like anybody teaches you how to do things," he said.
Amanda Bronstad can be contacted at email@example.com.