To join an MDL ... or not.

Should you join nationwide, multidistrict litigation or keep your claim in state court? Consider carefully before you choose.

Any attorney considering a products liability claim against a pharmaceutical manufacturer should be aware of the potential complications of coordinating his or her work with that of other lawyers handling similar actions. If the number of similar cases is large, there is always a possibility that they will become transferred to a single, national proceeding known as multidistrict litigation (MDL).

Prescription drug cases can involve tens, if not hundreds, of thousands of potential claimants. The litigation is likely to be nationwide in scope, with cases being filed in both state and federal courts. Courts often will coordinate cases to conserve the courts' and parties' resources and to promote efficient litigation by eliminating duplicative discovery and inconsistent pretrial rulings while still protecting the rights of the parties.

Under 28 U.S.C. [sections] 1407(a), "when civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings." These transfers are made by the Judicial Panel on Multidistrict Litigation, a group of seven appointed federal circuit and district court judges, if it finds that "the convenience of the parties and the witnesses will promote the just and efficient conduct of such actions."(1)

Likewise, many states have adopted procedures for assigning complex multiparty litigation to a single judge or judicial panel.(2) For example, California's Code of Civil Procedure [sections] 404 provides a procedure whereby a judge is assigned to determine whether complex civil actions that share a common question of fact or law and are pending in different courts should be coordinated. If coordination will "promote the ends of justice," the judge is vested with "whatever great breadth of discretion may be necessary and appropriate to ease the transition through the judicial system of the logjam of cases which gives rise to coordination."(3)

Unless a defendant files for bankruptcy, federal courts generally have no jurisdiction over state court claims, and there is no formal procedural means by which state and federal cases that involve the same prescription drug can be coordinated under the same judicial umbrella. Recognizing this, the Federal Judicial Center's Manual for Complex Litigation recommends that when the transfer of all cases to a single court for centralized management is not possible, the courts should try to coordinate proceedings through informal means to the extent possible in order to minimize conflicts, inconsistent rulings, and duplication of effort.(4)

According to the manual:

   Coordination becomes much more difficult and complex when cases are
   dispersed across a number of states, even where the federal cases are
   centered in a single MDL transferee court. Clearly, the federal MDL judge
   cannot impose coordinated management on widely dispersed state courts; it
   is difficult even to obtain and communicate information about such
   widespread litigation. The greatest need, therefore, is for an information
   network that could form the basis for voluntarily coordinated action by
   state court judges to the extent feasible under and consistent with their
   rules and procedures. The federal judge can serve as a catalyst for the
   development of an information network from which eventually some degree of
   state-federal coordination may emerge.(5)

Without cooperation between the federal court that has been assigned the MDL and the state judges who have been given the task of coordinating their respective proceedings, there can be a substantial divergence in how the cases move through the litigation process. There may be differences froth one court to the next in every facet of discovery and trial, from protective orders to dispositive motions, from deposition schedules to trial dates, and from document production to admissibility of evidence.

The manual, however, envisions a more organized approach:

   [J]udges have at times been able to achieve substantial coordination of
   various aspects of Some attorneys steadfastly avoid multidistrict
   litigation, believing that they have more control over the litigation and
   more leverage for faster resolution in their own state courts. pretrial:
   coordinating scheduling of discovery, motions, and other pretrial events;
   appointing lead or liaison counsel; developing a coordinated management
   plan for the entire litigation; providing for joint discovery, such as by
   cross-noticing of depositions and making discovery taken in one case
   available in other cases (reciprocity, cost sharing, and future cooperation
   may be required as conditions to obtaining discovery of use in other
   litigation); coordinating rulings on discovery disputes, such as the
   assertion of privilege and using parallel orders to promote uniformity to
   the extent possible.(6)

A plaintiff attorney filing a case in state court against an out-of-state drug manufacturer may have no choice but to become part of an MDL proceeding through involuntary removal to federal court based on diversity jurisdiction. However, if there is a legitimate cause of action against local defendants, such as physicians or pharmacists who wrongfully prescribed or provided the drug, the plaintiff may have the option of filing in state court, thereby preventing removal.

There is no question that attorneys deciding where to file an individual case or a class action should take into account fundamental distinctions between state and federal court procedures. But the practical dissimilarities may be negligible, especially if there is substantial coordination between state and federal courts handling similar cases.

Competing interests

Bringing together the various competing interests of parties--and factions within groups of parties with similar goals--in a number of courts presents a monumental management challenge for the judge assigned to coordinate the litigation. The courts themselves may have different interests and priorities when concurrent state and federal litigation is pending in several jurisdictions.

For example, state statutes of limitation for personal injury and wrongful death range from one to six years, and states with shorter statutes may have a greater concentration of early filings. Some state courts have extremely crowded dockets. They may be operating under a fast-track policy or a legislative mandate to resolve claims within a certain time period from the filing date.

The judge who is assigned the coordinated litigation in one state may prefer to move cases through the system more quickly than judges in other jurisdictions, and may not want to move in lockstep with an MDL proceeding. Or the judge may have a philosophy of resolving cases by setting early trial dates or pushing the parties toward mediation.

Others may take a slower, wait-and-see approach, preferring a more indefinite schedule. Some judges may defer to the MDL judge to determine the sequence and timing of discovery and handle trial scheduling. These judges will not make a move until the MDL judge does.

There may also be differences of opinion among the plaintiff attorneys as to how and where the litigation should proceed. Attorneys who have the option to file in state court may be opposed to filing in federal court and participating in the MDL. Those who practice in states with fast-track policies may be confident that they will obtain a head start on discovery, and they may try to avoid federal court and the MDL for fear that the federal litigation will not proceed as rapidly.

Some lawyers may also object to joining an MDL because they may have to pay an assessment, such as a percentage of each client's gross recovery, for the common-benefit work of the MDL lawyers. Some attorneys may prefer to do the work themselves and develop their own work product, unencumbered by the multidistrict litigation, if they feel they will have fewer restrictions in their own state courts. Others may wish to sit back and let lawyers in the MDL do all the work, obtaining the benefit without sharing in the cost and risk.

In an effort to be fair to the MDL lawyers who expend substantial time and effort for common-benefit work, some state court judges may order assessments in non-MDL cases to be paid to the MDL. The assessment amount may take into account the efforts of attorneys whose earlier work in their own courts has assisted the litigation.

Regardless of the assessment issue, some attorneys steadfastly avoid multidistrict litigation, believing that they have more control over the litigation, and more leverage for faster resolution, in their own state courts.

In any mass tort case involving prescription drugs, there will probably be several class actions filed seeking medical monitoring. Class action attorneys may also represent individual claimants in personal injury or wrongful death claims. The Manual for Complex Litigation advises that "in litigation involving both class and individual claims, class and individual counsel should coordinate."(7)

At times class and individual counsel may disagree over the direction they believe the litigation should take. Interests are not always identical or completely aligned.

For example, if class counsel is pushing for an aggressive discovery schedule to obtain early certification, the defense may likewise seek early discovery from the individual plaintiffs, including depositions of each plaintiff and his or her physicians. This may be palatable to an attorney who is handling only a single class action. However, extensive early discovery may be an extreme burden to attorneys with numerous individual clients who are seeking to explore early settlement of claims after generic liability discovery is substantially completed, without engaging in individual damages and liability discovery.

Documents and depositions

Pharmaceutical mass-tort litigation usually involves millions of documents ultimately produced in discovery. The manufacturer will undoubtedly want to avoid multiple productions in several states and will, therefore, push for production at a single national depository. The Propulsid litigation is being handled this way, with the depository located in LaPlace, Louisiana. On the other hand, plaintiff attorneys around the country will want their own production in their own states.

Generally, plaintiff attorneys want to obtain as many documents as possible early in the process. Those who have filed state court suits that are moving ahead of the multidistrict litigation will want to move even more quickly, hoping to obtain as much discovery as possible before an MDL-led informal coordination with their state courts possibly slows the pace.

Conversely, defendant manufacturers typically delay production in state court cases for as long as possible and may prefer to hold back state-coordinated proceedings and individual actions that may be progressing more rapidly than the MDL. The defendants may attempt to avoid any significant production in the hope that informal coordination between the state proceedings and the MDL will emerge, requiring production to occur at one location according to a specified schedule.

In litigation that is heavy on document discovery, the controversial issue of protective orders and confidentiality agreements relating to discovery--particularly document production--inevitably arises. Defendant manufacturers often insist on rigid control of the documents produced and seek to obtain orders severely restricting the distribution and copying of allegedly confidential materials. They may also attempt to withhold or, at a minimum, delay the production of damaging documents by claiming privilege.

While some judges routinely grant confidentiality orders, others rarely do. Reasonable minds may differ, and one judge may order unprotected production of documents that another judge believes should be protected as confidential, or not produced at all. This can create inconsistencies in the production of identical documents in different jurisdictions.

For instance, in Kellner v. General Motors Corp., a New York appellate court found that GM's "litigation study" was not privileged and that a protective order was properly denied.(8) But in Wolhar v. General Motors Corp., the Delaware Supreme Court upheld a finding that the same litigation study should be protected from disclosure to the general public and subject to a protective order.(9)

Inconsistencies also may result from different rules in different jurisdictions relating to confidentiality and the scope of evidence that should be produced or protected. For example, the Manual for Complex Litigation provides a form confidentiality order that requires the plaintiff to seek a ruling that a document or category of documents stamped as confidential is not entitled to protection.(10) The party seeking to prevent disclosure must then show "good cause for the document to have such protection."(11)

However, a superior court rule in Los Angeles County (which, by population, is larger than 42 states) allows confidentiality agreements and protective orders only under limited circumstances and with a document-by-document showing. Rule 7.19 provides:

   It is the policy of this court that confidentiality agreements and
   protective orders are disfavored and should only be approved by the court
   when there is a genuine trade secret or privilege to be protected. Such
   agreements will not be recognized or approved by this court absent a
   particularized showing (document by document) that:

      (a) Secrecy is in the public interest; and

      (b) The proponent has a cognizable interest in the material, i.e. the
   material contains trade secrets, privileged information, or is otherwise
   protected by law from disclosure; and

      (c) That disclosure would cause serious harm.(12)

State court rules that disfavor secrecy may encourage attorneys to avoid multidistrict litigation unless they can be fairly certain that they will be able to obtain necessary documents elsewhere. They will also seek an agreement that they will be able to use the documents according to the least restrictive terms under which those documents are ordered to be produced in another jurisdiction.

For the same reason that they may delay document production, defendant manufacturers may also want to postpone discovery relating to key employees. They do not want to subject deponents to multiple depositions in multiple jurisdictions, so they often attempt to obtain some sort of informal coordination whereby the depositions are cross-noticed. Noticing a witness's deposition simultaneously in multiple proceedings lessens the need to depose the witness again later.

In an MDL, the defense will probably seek early depositions of individual plaintiffs and their doctors. It can be to the defense's advantage to conduct these depositions before the plaintiffs complete their liability discovery, and before key employees are deposed, in cases involving the learned-intermediary doctrine, delayed discovery of injury, and comparative fault. The more the defense knows about the plaintiffs' case and all the relevant evidence before its witness is deposed, the better able the defense is to prepare the witness. Scheduling dozens of plaintiff and doctor depositions as soon as possible is an effective way for the defense to overwhelm plaintiff attorneys who are understaffed or underfunded and force them and their clients into submission.

On the other hand, most plaintiff lawyers prefer to complete "person most knowledgeable" depositions under Federal Rule of Civil Procedure 30(b)(6) or similar state court rules, as well as document discovery on general liability issues, before conducting any individualized discovery. Before deposing a prescribing physician, for example, it may be critical to know the extent of the manufacturer's undisclosed knowledge about a drug's harmful effects. If the physician's deposition is taken prematurely, before all relevant documents are produced and reviewed, his or her testimony and opinions may be inaccurate, and a second deposition may be necessary.

Whose discovery wishes are granted depends on the judge. Some judges in mass tort cases order simultaneous discovery on liability and damages. Others prefer to focus on general liability issues before permitting depositions on specific liability and damages in individual cases.

Setting a date

From the plaintiff attorney's perspective, an earlier trial date provides more settlement leverage. Many attorneys believe that proceeding in state court increases the chance of an earlier trial date because in an MDL, claimants must wait for their cases to be transferred back to the district courts where they were originally filed. They may avoid filing in federal court out of concern that their cases will be lumped with thousands of others from around the country and move through litigation slowly.

If only a few cases in the mass tort will be selected for initial trials, attorneys with experience in prescription drug litigation and resources to conduct necessary discovery and expert-witness retention and preparation will try to obtain trial dates for their best cases as quickly as possible. With or without a coordinated proceeding in an individual state, setting trial dates for strong cases may improve the chances of early resolution.

The defendants, on the other hand, will attempt to avoid early trial dates, especially in cases with strong liability facts and larger damages. If the judge in a coordinated proceeding is handpicking cases for early trial dates, the defense will prefer that cases with minimal damages or significant causation issues go to trial first. Just as a few large plaintiff verdicts will improve leverage in settlement negotiations for plaintiffs in other cases, a few early defense verdicts will bolster the defense posture in negotiations. Although little can be done to prevent this from happening, judges do try to be fair about selecting cases, and they don't always pick the best or worst cases for the initial trial.

Pros and cons 

Although many plaintiff attorneys are wary of multidistrict litigation, joining an MDL does offer some advantages. Lawyers participating in the MDL have the opportunity to work with a large number of attorneys from around the country with a wide range of experience and, potentially, more extensive work product. In an MDL situation, a greater quantity and quality of work can be produced.

Being part of the MDL may also provide attorneys with a nationwide network of resources and access to highly qualified, carefully selected experts who have been prepared by teams of attorneys with experience in class action and mass tort litigation. This usually generates high-quality work that cannot be duplicated easily.

The disadvantage of being part of multidistrict litigation is that federal courts may be more rigid regarding dispositive motions and admissibility of evidence, particularly scientific evidence and expert testimony.(13) State courts may be more liberal in terms of the scope of discovery, less restrictive with protective orders, and more likely to set earlier trial dates than would be obtained in an MDL.

The extent to which state and federal coordination is achieved will ultimately determine whether there is any significant difference between a state-coordinated proceeding and multidistrict litigation in pursuing pharmaceutical products liability cases. Because much depends on the personalities and preferences of the judges involved--factors over which the attorney has no control--the plaintiff attorney should carefully consider all available information and consult with other lawyers handling similar cases before choosing one court over another.

Notes

(1.) 28 U.S.C. [sections] 1407(a)(2001).

(2.) William Schwarzer, Judicial Federalism in Action: Coordination of Litigation in State and Federal Courts, 78 VA. L. REV. 1689, 1689-90 (1992).

(3.) McGhan Med. Corp. v. Superior Ct., 14 Cal. Rptr. 2d 264, 269-70 (Ct. App. 1993).

(4.) FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION (THIRD) (1995)[hereafter MANUAL].

(5.) Id. [sections] 31.31.

(6.) Id.

(7.) Id. [sections] 20.224.

(8.) Kellner v. General Motors Corp., 712 N.Y.S.2d 363, 364 (App. Div. 2000).

(9.) Wolhar v. General Motors Corp., 712 A.2d 464, 464 (Del. 1997).

(10.) MANUAL, supra note 4, at [sections] 41.36, Form A.

(11.) Id.

(12.) L.A. County Super. Ct. R. 7.19 (2001).

(13.) See, e.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 145-49 (1999); Daubert v. Merrell Dow Pharms., 509 U.S. 579, 584-85, 587-97 (1993).

RELATED ARTICLE: Try your pharmaceutical drug case using documents available from the ATLA Exchange

The documents listed below and many others pertaining to drug litigation are available from the ATLA Exchange. For more information, visit the Exchange Web site at exchange.atla.org, or contact the Exchange by phone, [phone]; or by fax, [phone].

Evidentiary issues

Jones v. Upjohn Co. The parties' appellate briefs and memoranda supporting and opposing the defendant's motion to dismiss. The court held that a plaintiff's criminal conviction does not collaterally estop a products liability suit against a drug manufacturer where the plaintiff alleges that the drug caused him to commit crimes. (No. PL617.)

Scovish v. Upjohn Co. The plaintiff's motion to compel discovery of a manufacturer's index and database containing documents and studies on Halcion. The case alleged that the drug caused the plaintiff's husband to commit suicide. (No. PL621, EX0372.)

Expert testimony

Ambrosini v. Labarraque. The parties' appellate briefs in a case involving Depo-Provera. The court held that an expert's affidavit in response to summary judgment is admissible even though it does not specify the bases for the expert's opinion and that a trial court had erred in its application of Daubert v. Merrell Dow Pharmaceuticals, Inc., in barring expert testimony. (No. PL398.)

Kittleson v. Sandoz Pharmaceutical Corp. The defendant's summary judgment motion, the plaintiffs' objection to that motion, the defendant's response brief, and the transcript of proceedings in a Parlodel case. The court held that the plaintiff's expert testimony was admissible under Daubert despite a lack of extensive epidemiological evidence or systematic studies. (No. PL821.)

Failure to warn, inadequate warning

Axen v. American Home Products Corp. The parties' trial memoranda in a case holding that punitive damages were properly awarded where the manufacturer of Cordarone did not warn about the potential for permanent vision loss. (No. PL773.)

Carlin v. Superior Court. The parties' petitions for and against a writ of mandate in a case holding that drug manufacturers may be strictly liable for failure to warn of the known or knowable risks associated with a prescription drug. (No. PL582.)

Lovett v. Wyeth-Ayerst Laboratory. The plaintiffs original master petition in a case alleging that a drug manufacturer failed to adequately test and warn of dangers associated with use of the combination diet drug fen-phen. (No. PL789.)

Learned-intermediary doctrine

Edwards v. Basel Pharmaceutical. The plaintiff's appellate briefs in a case holding that the learned-intermediary doctrine does not apply to a prescription nicotine patch where the Food and Drug Administration required direct consumer warnings. (No. PL679.)

Martin v. Ortho Pharmaceuticals. The plaintiffs' appellate briefs in a case holding that the learned-intermediary doctrine does not apply to an oral contraceptive where a federal regulation required direct consumer warnings. (No. LR570.)

Statute of limitations 

Green v. American Pharmaceuticals Co. The plaintiffs' appellate briefs in a case holding that where separate, rather than progressive, injuries arising out of use of diethylstilbestrol (DES) are alleged, Washington state's discovery rule applies to each injury separately. (No. PL696.)

Wetherill v. Eli Lilly & Co. The plaintiffs brief in a case holding that a cause of action for DES-related injuries accrued when the plaintiff discovered that her condition was caused by a third party, not when she discovered that she had physical abnormalities that caused repeated miscarriage. (No. PL649.)

Unreasonably dangerous drugs

Sandoz Pharmaceutical Corp. v. Roberts. The parties' appellate briefs in a case upholding a verdict against the manufacturer of Parlodel. The plaintiffs had alleged that the lactation suppressant was unreasonably dangerous and caused a woman to suffer a stroke. (No. PL660.)

L280 1MMA 

Mark P. Robinson Jr. and Kevin F. Calcagnie are partners with Robinson Calcagnie & Robinson in Newport Beach, California.