October 24, 2019 Articles

Trends in Selection of Transferee Court in Product Liability Multidistrict Litigation

Among the factors cited by the JPML in selecting a transferee forum, one stands out as having gained importance to the panel in recent years: the transferee judge.

By Tori Langton

As of August 2019, product liability cases comprise about 34 percent of active multidistrict litigation (MDLs), up from 24 percent at the end of 2014. Between September 2009 and September 2019, product liability cases were significantly more likely to be transferred by the Judicial Panel on Multidistrict Litigation (JPML) than not, with 93 cases transferred and transfer denied in 44, according to the JPML Case Management/Electronic Case Files system. In light of the more than 2-to-1 odds of transfer, whether product liability litigation will be transferred may be less of a question for the attorneys involved than where it will be transferred.

The JPML enjoys broad discretion in selecting a transferee district under 28 U.S.C. § 1407(a), which states that actions involving one or more common questions of fact “may be transferred to any district for coordinated or consolidated pretrial proceedings” upon the panel’s determination that transfer will “be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407(a) (emphasis added). In selecting a transferee forum, the panel occasionally cites its own precedent, although it frequently cites nothing other than its own logic.

In analyzing JPML precedent from the early days of the panel through the present, it is apparent that the panel has consistently considered several factors in selecting the transferee district in product liability litigation: the jurisdiction where most cases are pending, the jurisdiction where the most advanced cases are pending, the geographic centrality or convenience of the putative forum (or both), and the location (headquarters, manufacturing site, or other significant location) of the defendants. Since the late 1990s and early 2000s, the panel has also frequently considered the resources of the transferee forum. A single factor appears to have gained significance to the JPML in recent years: the transferee judge. Unfortunately, though, no clear trend has emerged regarding the particular qualities the transferee judge should possess, aside from being deemed capable by the panel.

Old Standbys

Some criteria cited by the JPML in selecting the transferee district have not changed significantly since the days of Celotex and Dalkon Shield in the 1970s. In both Celotex and Dalkon Shield, the JPML cited the court in which the majority of the cases were pending as the primary factor in the selection of the transferee court. In re Celotex Corp. “Technifoam” Prod. Liab. Litig., 68 F.R.D. 502, 505 (J.P.M.L. 1975); In re A. H. Robins Co. “Dalkon Shield” IUD Prod. Liab. Litig., 406 F. Supp. 540, 542–43 (J.P.M.L. 1975). The Celetox panel also cited the geographic centrality of Kansas, while the Dalkon Shield panel cited the more advanced stage of the litigation of the cases already pending in the transferee court. Similarly, in five of six product liability MDLs created to date in 2019, the JPML cited the location of the cases to be transferred or potential tag-along actions as a factor (or both) in determining the transferee jurisdiction. See In re 3M Combat Arms Earplug Prod. Liab. Litig.; In re Allura Fiber Cement Siding Prods. Liab. Litig.; In re Fisher-Price Rock ’n Play Sleeper Mktg., Sales Practices & Prods. Liab. Litig.; In re Valsartan N-Nitrosodimethylamine (NDMA) Contamination Prods. Liab. Litig.; In re ZF-TRW Airbag Control Units Prods. Liab. Litig.. Likewise, in six of seven product liability MDLs created in 2018, the JPML cited the jurisdiction where the most cases were pending, the jurisdiction where most advanced cases were pending, the geographic convenience or centrality of the transferee jurisdiction, or a combination of these, as factors considered in selecting the transferee court.

Another factor commonly cited from the relatively early days of the JPML through today is the location of the defendants, which is linked to the location of witnesses and documents. For example, in 1992, the panel noted in transferring the Factor VIII or IX Concentrate Blood Products litigation to the Northern District of Illinois, that the venue would “serve the convenience of the parties and witnesses” because “one principal defendant is headquartered in Illinois and another has a factor concentrate processing plant there.” In re “Factor VIII or IX Concentrate Blood Prods.” Prods. Liab. Litig., 853 F. Supp. 454, 455 (J.P.M.L. 1992). Similarly, in transferring the Skin-Cap litigation to the Southern District of Florida in 1998, the panel noted that “the American subsidiary of the Spanish manufacturer of Skin-Cap is located in Miami.” In re Skin-Cap Prods. Liab. Litig., 1998 U.S. Dist. LEXIS 13253, at *2–3 (J.P.M.L. 1998); see also In re St. Jude Med., Inc., 2001 U.S. Dist. LEXIS 5226, at *4–5 (J.P.M.L. 2001) (noting that “as the situs of the headquarters of the sole defendant in all actions, the [District of Minnesota] is likely to be a substantial source of witnesses and documents subject to discovery”). These same considerations are frequently cited by the panel today. See, e.g., In re Hill’s Pet Nutrition, Inc., 382 F. Supp. 3d 1350, 1351 (J.P.M.L. 2019) (noting that defendant “Hill’s is headquartered in that district, and it represents that its key evidence and witnesses are located there”). Indeed, given recent developments in constitutional personal jurisdiction practice, the defendant’s principal place of business is likely to assume even greater significance.

Familiar Favorites

In the late 1990s and early 2000s, the resources of the putative transferee district appear to have gained importance to the JPML, and these factors have continued to be frequently cited by the JPML. See, e.g., In re Inter-Op Hip Prosthesis Prods. Liab. Litig., 149 F. Supp. 2d 931, 933–34 (J.P.M.L. 2001) (“In concluding that the Northern District of Ohio is the appropriate forum for this docket, we note that the Ohio district is an accessible, geographically central metropolitan district that i) is not currently taxed with other multidistrict dockets, and ii) enjoys general caseload conditions permitting the Panel to effect the Section 1407 assignment to a court with the present resources to devote the substantial time to pretrial matters that this complex docket is likely to require.”). For example, in creating the Propulsid MDL in 2000, the panel focused on a lack of docket congestion in the transferee district:

In concluding that the Eastern District of Louisiana is the appropriate forum for this docket, we note that the Louisiana district not only offers a location in the central part of the United States, but, more importantly, enjoys general caseload conditions permitting the Panel to effect the Section 1407 assignment to a court with the present resources to devote the time to pretrial matters that this docket is likely to require.

In re Propulsid Prods. Liab. Litig. v. Johnson & Johnson, Co., 2000 U.S. Dist. LEXIS 11651, at *4–5 (J.P.M.L. 2000).

In transferring the Protegen Sling cases to the District of Maryland in 2001, the JPML focused on a different aspect of judicial resources, reasoning that the jurisdiction was “an accessible, metropolitan district equipped with the resources that this complex docket is likely to require.” In re Protegen Sling & Vesica Sys. Prods. Liab. Litig., 2001 U.S. Dist. LEXIS 1438, at *8 (J.P.M.L. 2001).

Both aspects of judicial resources—docket congestion and the resources of the metropolitan area—remain frequently cited by the panel in selecting a transferee forum. For example, in 2018, the panel noted in transferring the Aqueous Film-Forming Foams litigation to the District of South Carolina that “[t]his district is not burdened by many MDLs and has the capacity and resources to successfully guide this litigation.” In re Aqueous Film-Forming Foams Prods. Liab. Litig., 357 F. Supp. 3d 1391, 1396 (J.P.M.L. 2018). In 2019, in transferring the 3M litigation to the Northern District of Florida, the panel, like the panel in Protegen Sling, noted that “[c]entralization in this district allows the Panel to assign this nationwide litigation to a forum with the necessary judicial resources and expertise to manage this litigation efficiently and in a manner convenient for the parties and witnesses.” In re 3M Combat Arms Earplug Prods. Liab. Litig., 366 F. Supp. 3d 1368, 1369 (J.P.M.L. 2019).

Recent Trend—Focus on the Transferee Judge

Among the factors cited by the JPML in selecting a transferee forum, one stands out as having gained importance to the panel in recent years: the transferee judge. The transferee judge has been noted as a factor in the selection of a transferee district on an occasional basis since the 1990s. In these relatively rare instances, it was almost always pointed out that the judge had experience with the particular litigation to be transferred or in overseeing MDLs. See, e.g., Factor VIII or IX Concentrate Blood Prods., 853 F. Supp. at 455 (“Judge Grady, to whom we are assigning this litigation, has gained valuable experience and familiarity with the issues in this docket by presiding at the recent trial of a factor concentrate action.”); In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 844 F. Supp. 1553, 1554 (J.P.M.L. 1994) (“Judge Paul A. Magnuson, to whom we are assigning this litigation, has presided in a number of these actions, has entered important pretrial rulings, and is therefore familiar with the issues in this docket.”); In re GMC Type III Door Latch Prods. Liab. Litig., 1999 U.S. Dist. LEXIS 5075, at *2 (J.P.M.L. 1999) (“Judge James B. Zagel, to whom we are assigning this litigation, is an experienced transferee judge.”).

Far from giving it an occasional mention, the panel has cited the transferee judge by name in creating every product liability MDL from 2017 through August 2019, noting at minimum that the selected judge is a generally experienced jurist the panel is confident “will steer this litigation on a prudent course.” The panel has also frequently cited the experience of the transferee judge with the specific litigation or MDLs generally (or both) as a factor in selecting the district. See, e.g., In re Allura Fiber Cement Siding Prods. Liab. Litig., 366 F. Supp. 3d 1365, 1367 (J.P.M.L. 2019) (“[C]entralization in the District of South Carolina enables us to assign the litigation to Judge David C. Norton, an experienced transferee judge with the willingness and ability to manage this litigation.”); In re Davol, Inc., 316 F. Supp. 3d 1380, 1381 (J.P.M.L. 2018) (“Eight actions are pending in this district, six of them before Judge Edmund A. Sargus, an experienced transferee judge who will steer these cases on a prudent course.”); In re Zimmer M/L Taper Hip Prosthesis, 340 F. Supp. 3d 1379, 1381 (J.P.M.L. 2018) (“Judge Paul A. Crotty, to whom we assign the litigation, is presiding over Shaw. He is an experienced transferee judge, having previously handled three other MDLs.”).

The panel has cited the transferee judge’s experience presiding over MDLs as a particularly important factor in MDLs expected to be large, complex, high-profile, or a combination of these. For example, in selecting the Southern District of Florida as the transferee district in the Takata airbag MDL, the JPML observed, “[e]specially given the litigation’s many moving parts (e.g., multiple defendants, a related grand jury proceeding, and an ongoing investigation by the National Highway Administration), selection of an able and experienced jurist to serve as transferee judge is of particular importance.” In re Takata Airbag Prods. Liab. Litig., 84 F. Supp. 3d 1371, 1372–73 (J.P.M.L. 2015). Therefore, the panel assigned the litigation to the Honorable Federico A. Moreno, describing him as “a veteran transferee judge, having previously overseen MDL No. 1334, In re: Managed Care Litigation, a complex docket involving numerous health care defendants.” Similarly, in the opioid MDL, currently consisting of more than 1,600 cases, the JPML observed in selecting the transferee district, “Judge Dan A. Polster is an experienced transferee judge who presides over several opiate cases. Judge Polster’s previous MDL experience particularly MDL No. 1909—In re: Gadolinium Contrast Dyes Products Liability Litigation, which involved several hundred cases, has provided him valuable insight into the management of complex, multidistrict litigation.” In re Nat’l Prescription Opiate Litig., 290 F. Supp. 3d 1375, 1379 (J.P.M.L. 2018)

However, a parallel (although less common) trend makes it difficult to predict exactly how the experience of a prospective transferee judge will influence the panel: the transfer of cases to a judge the panel deems capable but who has not yet “had the opportunity” to preside over an MDL. See, e.g., In re Fisher-Price Rock ’n Play Sleeper Mktg., Sales Practices & Prods. Liab. Litig., 2019 U.S. Dist. LEXIS 133974, at *8 (J.P.M.L. 2019) (“Centralization in the Western District of New York therefore allows us to assign this litigation to an able jurist who has not yet had the opportunity to preside over an MDL.”); In re Stryker Orthopaedics LFIT V40 Femoral Head Prods. Liab. Litig., 249 F. Supp. 3d 1353, 1356 (J.P.M.L. 2017) (“Five LFIT V40 cases in the District of Massachusetts are pending before Judge Indira Talwani, who has not yet had an opportunity to preside over an MDL docket.”); In re Farxiga (Dapagliflozin) Prods. Liab. Litig., 273 F. Supp. 3d 1380, 1382 (J.P.M.L. 2017) (“[C]entralization in the Southern District of New York enables us to assign the litigation to Judge Lorna G. Schofield, an able and experienced jurist who has not had the opportunity to preside over an MDL.”). In some instances, the MDLs transferred to judges who have never presided over an MDL appear likely be on the smaller or less complex side, as in Stryker Orthopaedics LFIT V40 (some 150 cases at the time of transfer) and Farxiga (fewer than 25 cases at the time of transfer). But this has not always been the case: The Rock ’n Play MDL consisted of 10 putative class actions and 5 additional actions at the time of transfer to a judge who had never presided over an MDL.

Looking Ahead

Although it may be difficult to accurately predict where the JPML will transfer particular product liability litigation, it is probably safe to assume that the panel will continue to consider all of these factors (and possibly more) going forward. An overarching trend is that the JPML has not shifted away from considering any factors in selecting transferee courts; instead, it has gradually expanded the factors it considers. Assuming the number and percentage of civil cases consolidated in MDLs continues to climb, the JPML will likely need to give even more careful consideration to the selection of transferee districts in the future.

Tori Langton is a litigation associate at Greenberg Traurig, LLP, in Atlanta, Georgia.


Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).