Eighteen months ago I had never even heard the term “multidistrict litigation.” I had heard the term “mass torts” before, but I hadn’t actually given any thought to what that practice area might actually involve. In short, I was only dimly aware that the world of mass tort litigation existed. That all changed when, as fate would have it, I began my career as an attorney working for a mass tort law firm. Fortunately, although it was at times akin to drinking from a fire hose, I seem to have survived my first year in the world of mass torts. This article is a brief summary of what I have learned.

For starters, mass tort attorneys use at least as many acronyms as the cast of Jersey Shore. Since it’s always helpful to understand the language, the following is a quick list of the most commonly used mass tort acronyms.

MDL = multidistrict litigation
JPML = Judicial Panel on Multidistrict Litigation
PSC = Plaintiffs’ Steering Committee
DSC = Defense Steering Committee
CTO = conditional transfer order
PFS = plaintiff fact sheet
DFS = defendant fact sheet
PPO9 = Practice and Procedure Order #9

I will use these acronyms throughout the rest of this article. One other piece of preliminary information (before I begin my summary of MDLs) is that there is a bible of sorts for this practice area, entitled Manual For Complex Litigation by David F. Herr. If you intend to practice mass torts, you must obtain a copy of this book.

What is Multidistrict Litigation?

Multidistrict litigation (MDL) is a special federal procedure intended to more efficiently process complex litigation. The authority for the creation of an MDL derives from 28 U.S.C. § 1407, which provides that “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.” 28 U.S.C. § 1407(a). The procedure is typically used in instances where hundreds (or even thousands) of plaintiffs were injured by the same conduct of a defendant or defendants, such as in a plane crash or an oil rig blowout or by an allegedly unsafe drug or medical device. (See, e.g., In re Air Crash over the Mid-Atl., MDL No. 2144; In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179; In re DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation, MDL No. 2197.)

MDLs are created by the Judicial Panel on Multidistrict Litigation (JPML). The JPML was created in 1968 by an Act of Congress. See http://www.jpml.uscourts.gov/panel-info/overview-panel. It consists of seven sitting federal judges who are appointed by the Chief Justice of the United States. Id. Its role is to decide motions for centralization (i.e., to determine whether actions pending in different district courts involve common questions of fact sufficient to establish an MDL) and to assign the created MDLs to federal district court judges. Id. A party seeking the creation of an MDL must file a motion for centralization (also called a motion for 28 U.S.C. § 1407 transfer) with the JPML itself. The procedures for filing such a motion, as well as sample forms, are available on the JPML website. Such a motion must consist of at least two actions pending in district courts which arguably involve common questions of fact.

Once an MDL has been created, the procedure for the transfer to the MDL changes slightly. The party seeking transfer files what is called a notice of “tag-along” action with the JPML. This “tag-along” notice can be filed for any case pending in a federal district court and involving the common questions of fact specific to the MDL. It does not matter whether the case was initially filed in federal court or initially filed in state court and then removed to federal court. The JPML then issues a conditional transfer order (CTO), which, as the name implies, conditionally transfers the case to the MDL. Within seven days of the issuance of the CTO, any party opposing the transfer must file a notice of opposition in the JPML. This is done using a form available on the JPML website. The opposing party must then, within fourteen days of filing its notice of opposition, file with the JPML a motion to vacate the transfer and a brief in support thereof. If the transfer is not opposed, then the MDL court will issue a “finalized CTO,” transferring the case to the MDL docket.

What Happens after a Case Is Transferred to an MDL?

Once a case is transferred to an MDL, it is subject to the pretrial procedures established by the MDL court, most notably the discovery procedures and deadlines. These differ somewhat from the discovery procedures typical in non-MDL cases. Since the purpose of creating an MDL is to avoid the proverbial reinvention of the wheel in every cause of action, the defendant or defendants produce their documents only once (and not hundreds or thousands of times), and they are then used for the benefit of all plaintiffs in the MDL.

You may now be wondering exactly how this production and sharing is accomplished since it quite obviously involves a significant amount of coordination from both sides of the aisle. The answer to this question is steering committees. At the beginning of the litigation, an MDL court establishes a Plaintiffs’ Steering Committee (PSC) and a Defense Steering Committee (DSC). Attorneys seeking appointments to these committees must submit an application to the MDL court. Once the appointments are made and the committees are formed, the PSC and the DSC then work with each other and with the MDL court to move the litigation forward. Throughout the process, there is an emphasis on streamlining discovery so that it progresses as efficiently as possible.

For instance, both sides seek to standardize the paper discovery process as much as possible by developing fact sheets, which are then completed in lieu of initial written interrogatories. The parties create a plaintiff fact sheet (PFS) and a defendant fact sheet (DFS). Each is designed to collect relevant information, and the parties often argue over the content and scope of the information sought as well as the individual questions themselves and the number of questions. When the PSC and the DSC can’t agree on an issue related to one of the fact sheets, the MDL court decides the issue. All objections with respect to the fact sheets are addressed before the fact sheets are put to use. Indeed, the MDL court must approve the proposed fact sheets, and the final, approved version of each is then used in each cause of action within the MDL.

Similarly, the PSC and the DSC work together regarding the production of documents. As stated earlier, defense documents are produced to the PSC. The PSC then coordinates its review of the produced documents among the plaintiffs’ attorneys involved in the MDL. This eliminates the need for defendants to repeatedly produce the same documents and for multiple plaintiffs’ attorneys to review the exact same documents. Similarly, the PSC notices defendant depositions and appoints plaintiffs’ attorneys from within the MDL to take them. The testimony elicited in these depositions is then available for use in every cause of action pending within the MDL.

So far (with the possible exception of the PFS), I’ve discussed only discovery relating to the common question(s) of fact on which formation of the MDL was based. So what happens with respect to case-specific discovery? Well, in the parlance of mass tort lawyers, they are “PPO 9’ed,” which means they are transferred back to the transferor federal district court for the purpose of conducting case-specific discovery. Practice and Procedure Order #9 (PPO9) establishes this procedure; hence, the term “PPO9’ed.” The MDL court designates cases for PPO9 discovery in “waves,” and these “waves” typically follow the completion of much of the consolidated discovery.

The MDL court, the PSC and the DSC work together throughout the litigation. If the PSC and the DSC are unable to resolve a discovery or other type of dispute, the MDL court will intervene. The MDL court addresses issues and sets scheduling deadlines at case status conferences, which are held as frequently as the MDL court deems necessary. Although it is the members of the PSC and the DSC who address the MDL court during these conferences, typically counsel for all parties in the MDL participate via telephone.

Bellwether Trials

If you’ve reached this point in this article, you may be wondering what all of this means for the trial of MDL cases. Consolidating cases with common questions of fact for pretrial purposes certainly saves time and resources and promotes efficiency, but what good is all that if hundreds or thousands of similar cases must still be tried?

The solution to that conundrum is bellwether trials. The immediate goal toward which the MDL court, the PSC and the DSC all work is bellwether trials. In its initial scheduling order, the MDL court sets dates for bellwether trials, which, as long as the parties have agreed to waive any venue objections, are tried before the MDL court. Other cases within the MDL are remanded to the transferor court for trial.

As their name implies, the purpose of bellwether trials is to conduct trials that will allow all parties and the MDL court to assess the strengths and weaknesses of the MDL cases as a whole and to provide a benchmark by which the cases can be valued. Bellwether cases must therefore be as representative of the MDL cases as a whole as is possible. As with discovery and scheduling, the PSC and the DSC work together during the bellwether process. Typically, criteria are first established to create a finite universe of possible bellwether cases. Then, both sides review the cases from within that universe and select a specified number of cases to be their bellwether submissions. Each side submits its bellwether choices to the MDL court, often with a short summary of the case and the reasons why it would be an ideal bellwether. The MDL judge then selects the bellwether cases.

A Few Things to Watch Out For

If you find yourself in the world of multidistrict litigation, there are more than a few nuances specific to the practice that you should become aware of sooner rather than later. First, at least browse through the Manual for Complex Litigation. I know I already mentioned this book, but it would be impossible to understate its usefulness. Now that you know of its existence, read some of it. Also, exploring the JPML website is a must.

My second additional tidbit of advice also involves reading. As soon as you find yourself in an MDL court, download and read a copy of that court’s local rules. Not all MDL judges are sticklers when it comes to applying the local rules to MDL proceedings, but some are, so learn them. Besides, even if your MDL judge isn’t a stickler, abiding by local rules and customs garners good will. As the saying goes, “When in Rome, do as the Romans do.”

Third, keep your eyes wide open for choice-of-law issues. Choice-of-law issues are, of course, inherent in complex litigation. MDLs, however, can add new wrinkles when it comes to such analysis. For instance, in multidistrict litigation, matters of federal law are governed by the law of the transferee court. See Ricupito v. Indianapolis Life Ins. Co., No. 3:09-CV-2389-B, 2011 U.S. Dist. LEXIS 97334, at *5 (N.D. Tex. Aug. 31, 2011) (“As to matters of federal law, however, the Court applies the law of the transferee court.”); Bhatia v. Dischino, No. 3:09-CV-1086-B, U.S. Dist. LEXIS 97339, at *15-16 (N.D. Tex. Aug. 29, 2011).