United States: And Now A Word From The Panel: 4 MDL Lessons At 40

Welcome to our 40th installment of "And Now a Word from the Panel," a column which "rides the circuit" with the Judicial Panel on Multidistrict Litigation as it meets on a bimonthly basis at venues around the country. As we reach this milestone, we will take a few moments to reflect on lessons learned over the past 40 panel hearing sessions, and the evolution of the MDL landscape over that six-and-a-half-year period.

But before looking back into history, let us first reflect on the present. This week, the panel heads northwest to Portland, Oregon, for its July 25 hearing session and another busy docket. Picking up the pace from earlier this year, the panel will consider 11 new MDL petitions, bringing this year's total to 27 MDL petitions heard by the panel, with two hearing sessions remaining.

At the May hearing session in New Orleans, the panel considered six new MDL petitions. The panel denied five of those motions and granted only one motion, a product liability litigation arising from allegedly defective dog food containing dangerously high levels of vitamin D.¹

As we pass the "All-Star" break, the panel's batting average has dipped below .500 for the year, to .438 (seven motions granted, and nine motions denied). Four of this year's seven new MDL proceedings are product liability actions, with the remaining three consisting of antitrust, patent and data breach litigations.

The overall number of pending MDL proceedings has declined to 199,² as compared to 204 just two months ago. The panel continues to close out older MDL dockets, terminating a total of 19 existing MDLs this year through mid-July.³ Product liability MDLs now comprise nearly 35% of the total number of MDL proceedings.⁴

The 199 pending MDL proceedings encompass 141,536 actions.⁵ There are now 32 MDL proceedings which have more than 500 individual pending actions, almost all of which are from among the product liability MDLs.⁶

4 LESSONS AT 40

Over the life of this column, and over the course of 40 panel hearing sessions, we have seen certain trends in MDL practice. Although some have remained constant, other trends have become pronounced, while yet others have shifted gears.

In honor of the occasion, let us now explore four of the lessons learned.

MDL Lesson 1: The MDL Magnet

When our column began in 2013, there were 291 MDL proceedings.⁷ Although the absolute number of MDL proceedings has decreased, the MDL magnet is more powerful than ever.

By "magnet," we are not referring to the number of proceedings, but rather the number of individual actions pending in those proceedings. Indeed, the MDL process itself appears to have a magnetic pull to attract new cases at a rapid pace, including cases filed without proper vetting.

MDL Lesson 2: The Shifting MDL Docket

At the beginning of 2013, the 291 MDL dockets were comprised primarily of product liability (72), antitrust (57), securities (37), sales practices (34) and patent (19) MDL proceedings.⁸ By mid-2019, product liability MDLs still lead the pack, and as noted earlier, comprise nearly 35% of the MDL docket (69 out of 199), while they comprised less than 25% of the MDL docket (72 out of 291) when this column began.

There are still 48 antitrust MDLs and 21 sales practices MDLs, but there has been a precipitous drop in other categories of cases. There are only seven securities MDLs and seven patent MDLs left.

A growth category is data breach and privacy MDLs, with some 16 MDL proceedings in that area.⁹ The MDL world is still very much alive and well, and particularly pronounced in the area of product liability (as well as other personal injury litigations), where the MDL magnet is extremely powerful.

MDL Lesson 3: It's Still About Location, Location, Location

As this column has observed, one of the most unpredictable features of panel practice is the selection of the venue for a new MDL proceeding.¹⁰ The import of MDL venue looms large for MDL practitioners and their clients.

The factors that the panel will consider have remained remarkably constant over the past six years, including the location of parties' headquarters (where witnesses and documents are likely located), the situs of the currently pending actions, the first-filed action, the procedurally advanced actions and previously related litigation. In recent decisions, the panel has also considered the district supported by a majority of the parties.

In addition, the panel constantly finds itself balancing the import of selection of an experienced MDL judge with identifying new judges to add to the roster of MDL judges. In that vein, the 199 pending MDL proceeding are assigned to a total of 158 judges – 13 chief district court judges, 48 senior district court judges and 97 other district court judges – spread across 46 of the 94 federal judicial districts.¹¹

MDL Lesson 4: Consider Your Alternatives

For years, the panel has reminded us that Section 1407 "should be the last solution after considered review of all other options."¹² And to this day, the panel continues to remind us what those options might be, ranging from informal coordination among the courts and counsel to Section 1404 transfer. This is particularly the case where there are a minimal number of parties, involved attorneys and actions.

What will the summer hearing session bring to the panel? Will the panel trends remain the same? What new trends will we see? Will the MDL magnet attract new cases to MDL proceedings? What lessons will we glean from the latest panel hearing session? Stay tuned for our September edition of "And Now A Word From The Panel," as the panel heads to Los Angeles, California, for its September 26 hearing session!

Footnotes

1. In re Hill's Pet Nutrition Inc. Dog Food Prods. Liab. Litig., MDL No. 2887 (J.P.M.L. June 4, 2019).

2. MDL Statistics Report - Docket Summary Listing, Active Litigations (July 16, 2019).

3. MDL Statistics Report - Docket Summary Listing, Closed Litigations (July 16, 2019).

4. MDL Statistics Report - Docket Type Summary (July 16, 2019).

5. MDL Statistics Report - Distribution of Pending MDL Dockets by Actions Pending (July 16, 2019).

6. Id.

7. Calendar Year Statistics of the US JPML (January through December 2012).

8. Id.

9. MDL Statistics Report - Docket Type Summary, Active Litigations (July 16, 2019).

10. See "And Now a Word from the Panel," Law360 (Mar. 19, 2013) ("You've Just Been MDL'd: Where are You Going Next?").

11. Id.

12. In re Gemcap Lending I LLC Litig., MDL No. 2892, at 2 (J.P.M.L. June 5, 2019); In re Best Buy Co. Inc. Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011).

Originally published by Law360.

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