The court in In re Actos (Pioglitazone) Products Liability Litigation, Civ. No. 12-00064, MDL No. 11-2299, 2014 WL 107153 (W.D. La. Jan. 8, 2014), was in charge of the multidistrict litigation (MDL) proceeding for approximately 2,800 cases in which plaintiffs claimed defendants’ pioglitazone-containing medications (prescribed for treatment of type 2 diabetes) caused an increased risk of developing bladder cancer. Embarking on the task of conducting bellwether trials, a process agreed on by both parties, the court issued a scheduling order that “imposed the requirement upon both parties to assist trial preparation by bringing as many witnesses to trial as possible, rather than relying on depositions.”
As the date for the first bellwether trial quickly approached, the court was faced with the last-minute problem that current and former employees of defendants were not going to be available for live, in-court testimony. The plaintiffs filed a motion requesting that the court order these unavailable witnesses to appear and give live testimony via contemporaneous transmission, essentially requesting a videoconference with the witnesses. It was undisputed by either party that the individuals were outside the Rule 45 subpoena power of the court. As well, many of the witnesses who were the subject of the motion had been deposed via video. However, the court noted that insufficient time remained before trial for it to rule on the “very large number of additional video deposition transcripts that would be required” if the plaintiffs’ motion was not granted.
Clearly faced with a strong preference for live testimony in the first bellwether trial, the court looked to both Rule 43 and newly amended Rule 45, to hold that Rule 43’s permission for “testimony in open court by contemporaneous transmission from a different location,” combined with Rule 45’s permission for nationwide service of process from the trial location court, gave it the power to order witnesses beyond the traditional subpoena power to appear before the court for live testimony via videoconference.
In granting the plaintiffs’ motion and ordering the former and current employees of the defendants to appear in their respective district courts across the nation via contemporaneous video transmission, the court relied most heavily on a few important factors: (1) the pretrial scheduling ordering requiring all parties to bring “as many witnesses to trial as possible”; (2) the choice by both parties to engage in a bellwether trial process in which the initial trials would have far-reaching results for other pending cases; (3) the witnesses’ status as employees or former employees of the defendants; and (4) our justice system’s goal of exerting “a powerful force of truth-telling,” which is best served by live testimony.
Analyzing the plaintiffs’ motion under Rule 23’s good-cause and compelling-circumstances standard, the court found both, and noted that multidistrict litigation had “old habits and routines” that had, “in some instances, created the types of Gordian knots that can lead to the stasis this Court and the parties seek to avoid.” Id. at 5, 8. (noting the parties’ mutually expressed desire for a “bottom-up” approach to management of the cases because control is so easily lost in an MDL setting). The court wanted to move the bellwether process along so as to not hold up other pending litigation. It also took seriously the idea that bellwether trials “can help generate information for the use of ‘the parties and the court to determine the nature and strength of the claims, whether they can be fairly developed and litigated on a group basis and what range of values the cases may have if resolution is attempted on a group basis.’” Id. at 11 (quoting Manual for Complex Litigation § 22.315 (4th ed. 2004)). For the “first bellwether” trial in the Actos litigation, the court appears to have taken on a specific responsibility to “present the testimonial evidence of both sides as fairly and completely as possible.” To this end, the court employed Rules 43 and 45 in conjunction to “more closely provide ‘live’ testimony in Open Court when the witnesses cannot appear in Open Court at the location of the Court and when video depositions are not a viable means of securing the appearance of those witnesses.” Id. at 12 (emphases in original).
The defendants cited numerous cases in which similar motions had been denied, but the court noted simply that those were not bellwether cases. Next, the defendants attempted to rely on the advisory committee notes to Rule 43, which described the “most persuasive showings of good cause and compelling circumstances” as those that “arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place.” Fed. R. Civ. P. 43 advisory committee’s note (1996). The comments also state that “[o]ther possible justifications for remote transmission must be approached cautiously. Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena. . . .” Id.
In spite of previously noting that the court had “not located any controlling jurisprudence” on ordering witnesses unreachable by subpoena to appear via contemporaneous transmission, the court summarily dismissed the defendants’ arguments based on the Rule 43 commentary, stating only that the comments were not intended to address “a situation such as the one at hand” and did not present “an exclusive list of the ‘compelling circumstances’ under which contemporaneous transmission of live testimony may be permitted.” In re Actos, at 20–21 (emphasis in original).
The Actos court also turned to In re Vioxx Products Liability Litigation, 439 F. Supp. 2d 640 (E.D. La. 2006), for support, calling it “if not the only decision directly applying Rule 43 in the context of a multidistrict litigation, certainly the most on point.” In re Vioxx ordered an “upper-level Merck officer,” over whom the court found Merck had significant control, to testify by contemporaneous videoconferencing. Interestingly, some of the revisions to Rule 45 were adopted to address a different, albeit similar, In re Vioxx Products Liability Litigation case in which the same court again compelled a party officer residing in New Jersey to appear, this time live, in court in New Orleans. 438 F. Supp. 2d 664 (E.D. La. 2006).
The committee adopted changes to Rule 45(c)(1)(A) to make clear that the rule “does not authorize a subpoena for trial to require a party or party officer to travel more than 100 miles unless the party or party officer resides, is employed, or regularly transacts business in person in the state.” Fed. R. Civ. P. 45(c) advisory committee’s note (2013). This change effectively overruled the In re Vioxx court’s interpretation of Rule 45’s 100-mile limitation.
Whichever direction the jurisprudence heads, the Actos court provided an interesting interpretation of Rule 45’s new, nationwide service provision when it used the provision to support an order requiring the testimony of former and current employees by contemporaneous video transmission, even though they remained beyond the court’s Rule 45 subpoena power.
Keywords: mass torts litigation, Rule 45, videoconference, subpoena, Federal Rules of Civil Procedure, Actos