The Pros and Cons of The Pros and Cons of MDL ConsolidationMDL Consolidation

Goodell, DeVries, Leech & Dann, LLPBaltimore, MD

Linda S. WoolfJeffrey J. Hines

MDLAHEA

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It Can Happen to You…It Can Happen to You…

Since 2000, 67-87% of requested Since 2000, 67-87% of requested MDL transfers have been granted by MDL transfers have been granted by the JPML.the JPML.

As of February 2010, there are 310 As of February 2010, there are 310 MDLs in over 60 federal districts.MDLs in over 60 federal districts.

http://www.jpml.uscourts.gov/General_Info/Overview/overview.html

Publicity:Publicity:

A Weapon of

Destruction

Beware: The World is Watching….

“Bloomberg, L.P. has standing as the eyes and ears of the public”…

“The world is watching this litigation closely and with great concern…”

“Public health is very much at stake here”

And There’s Nowhere to And There’s Nowhere to Hide!Hide!

Sales

Call Notes!

Embarrassing Personal Emails!

Sensitive

Marketing Data!

Doctor’s Prescribing Practices!

Unpublished Clinical Trials!

If You Build it They Will If You Build it They Will Come…Come…

The SeroquelThe Seroquel® ®

In In In Re Seroquel Liability LitigationIn Re Seroquel Liability Litigation, , 92% of the cases pending at the time 92% of the cases pending at the time of oral argument before the JPML of oral argument before the JPML were filed were filed AFTERAFTER the petition for MDL the petition for MDL was filed.was filed.

Three years into the MDL, there are Three years into the MDL, there are over 20,000 claims.over 20,000 claims.

Explosion!

91% of the newly-filed MDL cases did not 91% of the newly-filed MDL cases did not allege diabetes (the claimed injury in the allege diabetes (the claimed injury in the litigation). litigation).

AstraZeneca has won summary AstraZeneca has won summary judgment or obtained voluntary judgment or obtained voluntary dismissals in every case worked-up so far dismissals in every case worked-up so far in the MDL. But the remaining meritless in the MDL. But the remaining meritless cases are now facing remand for trial.cases are now facing remand for trial.

The SeroquelThe Seroquel®® Explosion!

If You Build it They Will If You Build it They Will Come…Come…

Plaintiffs gain “critical mass” which Plaintiffs gain “critical mass” which gives them leverage despite gives them leverage despite meritless cases.meritless cases.

Knowing this, Plaintiffs’ counsel do Knowing this, Plaintiffs’ counsel do not always do a good faith pre-suit not always do a good faith pre-suit investigation. investigation.

The Forum “Shell Game”The Forum “Shell Game”

Plaintiffs’ counsel “bury” their weak Plaintiffs’ counsel “bury” their weak cases in the MDL, hoping they will cases in the MDL, hoping they will never see the light of day.never see the light of day.

At the same time, Plaintiffs At the same time, Plaintiffs aggressively advance strong state aggressively advance strong state cases in an effort to obtain favorable cases in an effort to obtain favorable decisions and increase their leverage decisions and increase their leverage in the litigation. in the litigation.

Higher Stakes = A Harder Higher Stakes = A Harder FightFight

Every discovery battle Every discovery battle takes on monumental takes on monumental significance. significance.

It is difficult to win It is difficult to win discovery battles discovery battles based on burden or based on burden or relevance. relevance.

Higher Stakes = A Harder Higher Stakes = A Harder FightFight

The focus is on The focus is on generic discovery (i.e., generic discovery (i.e., the Company).the Company).

Plaintiffs walk away Plaintiffs walk away with a stronger case with a stronger case against the company.against the company.

Higher Stakes = A Harder Higher Stakes = A Harder FightFight

Counsel must devise Counsel must devise arguments that can arguments that can win the cases win the cases wholesale.wholesale.

This requires greater This requires greater effort and expense.effort and expense.

Cost savings is a

myth

Any Potential Cost Savings Any Potential Cost Savings is Offset By:is Offset By:

MDL 2139: A Recent JPML MDL 2139: A Recent JPML DenialDenial

In Re Ambulatory In Re Ambulatory Pain Pump- Pain Pump- Chondrolysis Chondrolysis Products Liability Products Liability LitigationLitigation (MDL. No. (MDL. No. 2139) was denied 2139) was denied transfer on March transfer on March 14, 2010.14, 2010.

MDL 2139: The Panel’s MDL 2139: The Panel’s ConclusionConclusion

“we are unconvinced that centralization we are unconvinced that centralization would serve the convenience of the would serve the convenience of the parties or promote the just and efficient parties or promote the just and efficient conduct of the litigation, taken as a conduct of the litigation, taken as a whole.”whole.”

“The parties can avail themselves of The parties can avail themselves of alternatives to §1407 transfer to minimize alternatives to §1407 transfer to minimize whatever possibility there might be of whatever possibility there might be of duplicative discovery and/or inconsistent duplicative discovery and/or inconsistent pretrial rulings.”pretrial rulings.”

Reasons Cited for Denial:Reasons Cited for Denial:

Individual issues of causation and liability Individual issues of causation and liability predominated:predominated:

Pain pumps vary in size, design, volume capacity, Pain pumps vary in size, design, volume capacity, duration and flow capacity.duration and flow capacity.

The same anesthetic was not used in all surgeries.The same anesthetic was not used in all surgeries. Plaintiffs have different medical histories that bear on Plaintiffs have different medical histories that bear on

causation.causation.

Diverse procedural stagesDiverse procedural stages Fact discovery was either over or nearly over in many Fact discovery was either over or nearly over in many

cases.cases. Expert discovery was underway or had been Expert discovery was underway or had been

completed in many cases.completed in many cases.

A Different Perspective

But What About MDL But What About MDL 1553?1553?

Oh, I think I saw that movie….

Wait a minute, was

I in that movie??

“The inspiring true story of courageous Judge Jack and a screening scam that will leave you… scandalized.”

In Re Silica Products Liability In Re Silica Products Liability LitigationLitigation

For-profit screening For-profit screening company with no company with no medical training medical training generated 6,757 generated 6,757

MDL Silicosis claims.MDL Silicosis claims.

9,083 MDL plaintiffs 9,083 MDL plaintiffs had been diagnosed had been diagnosed by under ten by under ten physicians.physicians.

The Medical EvidenceThe Medical Evidence

Unreliable Exposure HistoriesUnreliable Exposure Histories ““devoid of meaningful details” -Judge devoid of meaningful details” -Judge

JackJack

Unreliable Radiological OpinionsUnreliable Radiological Opinions ““Double Dippers”Double Dippers”

Unreliable Differential DiagnosesUnreliable Differential Diagnoses “ “it is clear that [the doctor] had an it is clear that [the doctor] had an

agenda: diagnose silicosis and nothing agenda: diagnose silicosis and nothing else” -Judge Jackelse” -Judge Jack

… these diagnoses were about litigation rather than health care. And yet this statement, while true, overestimates the motives of the people who engineered them. The word “litigation” implies (or should imply) the search for truth and the quest for justice. But it is apparent that truth and justice had very little to do with these diagnoses – otherwise more effort would have been devoted to ensuring they were accurate. Instead, these diagnoses were driven by neither health nor justice: they were manufactured for money.

Judge Jack

Efficiency Breeds EconomyEfficiency Breeds Economy

Cost Saving

s

• Fewer Depositions

• Less Travel

• Fewer Documents

• Fewer Motions

• Less time away from work for employees

Consolidation Means Consolidation Means ConsistencyConsistency

Minimizes disparate rulings on Minimizes disparate rulings on identical subject matter.identical subject matter.

Encourages coordination between Encourages coordination between state and federal courts on common state and federal courts on common pretrial issues.pretrial issues.

Judge may appoint a Special Master.Judge may appoint a Special Master.

The MDL “Black Hole”The MDL “Black Hole”

““The centralized forum [of MDLs] can The centralized forum [of MDLs] can resemble a black hole, into which resemble a black hole, into which cases are transferred never to be cases are transferred never to be heard from again.”heard from again.”

Eldon E. Fallon, et al., Eldon E. Fallon, et al., Bellwether Trials in Multidistrict Bellwether Trials in Multidistrict LitigationLitigation, 82 Tul. L. Rev. 2323, 2330 (2008). , 82 Tul. L. Rev. 2323, 2330 (2008).

The MDL “Black Hole”The MDL “Black Hole”

Of the 216,809 actions transferred to Of the 216,809 actions transferred to an MDL since 1968, only 11,737 have an MDL since 1968, only 11,737 have been remanded by the JPML for trial.been remanded by the JPML for trial.

– Statistical Analysis of Multidistrict LitigationStatistical Analysis of Multidistrict Litigation 2009 ( 2009 (http://www.jpml.uscourts.gov/Statistics/statistics.html))

If your case is transferred to an MDL, If your case is transferred to an MDL, settlement will be the likely settlement will be the likely disposition.disposition.

MDL Judges tend to be proactive.MDL Judges tend to be proactive. Parties already convened- just need dialogue.Parties already convened- just need dialogue.

MDLAHEA

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Now What?Now What?

Parties only have two limited Parties only have two limited opportunities to influence the JPML’s opportunities to influence the JPML’s selection of transferee district and selection of transferee district and judge:judge:

A 20 page brief, andA 20 page brief, and 1 to 5 minutes for oral argument.1 to 5 minutes for oral argument.

Thus, it is important to have a strategy Thus, it is important to have a strategy for MDL transfer from the outset.for MDL transfer from the outset.

A Real Advocacy ChallengeA Real Advocacy Challenge

Counsel opposing consolidation must Counsel opposing consolidation must argue against transfer but then for a argue against transfer but then for a particular district in the event particular district in the event transfer is ordered.transfer is ordered.

Early research is the key to Early research is the key to developing arguments in opposition developing arguments in opposition that do not contradict transfer to that do not contradict transfer to your desired transferee district.your desired transferee district.

What Does the JPML What Does the JPML Consider ?Consider ?

Number and complexity of actionsNumber and complexity of actions How many potential “tag-along” actions there How many potential “tag-along” actions there

are.are. The fewer the cases, the more complex the The fewer the cases, the more complex the

issues must be to warrant transfer.issues must be to warrant transfer.

Procedural stage of the casesProcedural stage of the cases Transfer is more likely for cases in early Transfer is more likely for cases in early

procedural stage.procedural stage. For cases nearing trial, or in a wide variety of For cases nearing trial, or in a wide variety of

different procedural stages, transfer is less different procedural stages, transfer is less likely.likely.

What Does the JPML What Does the JPML Consider ?Consider ?

Opportunity to coordinate with other Opportunity to coordinate with other proceedingsproceedings

Forum where federal/state coordination can Forum where federal/state coordination can be most extensive.be most extensive.

Experience of judgeExperience of judge Experience with other MDLs.Experience with other MDLs. Experience with the subject matter of the Experience with the subject matter of the

litigation.litigation.

What Does the JPML What Does the JPML Consider ?Consider ?

Docket conditions of transferee judge Docket conditions of transferee judge and districtand district

Caseload and resources to handle massive, complex Caseload and resources to handle massive, complex litigation.litigation.

Preferences of the partiesPreferences of the parties Not dispositive, but can be persuasive.Not dispositive, but can be persuasive.

Geographic location of districtGeographic location of district Proximity to important witnesses, company Proximity to important witnesses, company

operations, evidence or important parties.operations, evidence or important parties.

JPML Decisions: A Closer JPML Decisions: A Closer LookLook

One article undertook an analysis of One article undertook an analysis of over 300 JPML transfer orders from over 300 JPML transfer orders from 2003-2008 to look at what factors 2003-2008 to look at what factors the Panel cited for various types of the Panel cited for various types of cases. cases.

– Unsurprisingly, 93% of transfers were to Unsurprisingly, 93% of transfers were to a district where either a constituent a district where either a constituent action or “tag-along” action was action or “tag-along” action was currently pending.currently pending.

Daniel A. Richards, An Analysis of the Judicial Panel on Multidistrict Litigation’s Selection of Transferee District and Judge, 78 Fordham L. Rev. 311, 331 (2009).

JPML Decisions: A Closer JPML Decisions: A Closer LookLook

Additional factors considered may vary Additional factors considered may vary depending upon the type of case.depending upon the type of case.

Preferences of partiesPreferences of parties and and geographic centralitygeographic centrality were cited most often in were cited most often in products liability casesproducts liability cases..

Experience of the judgeExperience of the judge was cited twice as often was cited twice as often in in sales practices casessales practices cases..

Proximity of districtProximity of district to events of lawsuit- to events of lawsuit- unsurprisingly- was most often cited in unsurprisingly- was most often cited in air air disaster casesdisaster cases. .

The Bottom LineThe Bottom Line

Whether or where the JPML will transfer Whether or where the JPML will transfer cannot be predicted with certainty.cannot be predicted with certainty.

Focus early research and strategy Focus early research and strategy development on the “where” question.development on the “where” question.

A “hands on” judge who has experience A “hands on” judge who has experience aggressively managing complex litigation aggressively managing complex litigation is the linchpin to a successful MDL.is the linchpin to a successful MDL.