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.

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