Lightning Strikes: A Successful Appeal in the Opioid MDL and Whether We Will See More Interlocutory Appeals in MDLs

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Earlier this year, the United States Court of Appeals for the Sixth Circuit did something almost unheard of: it took an appeal from an order entered by an MDL judge and reversed it.  The order came from the Opioid MDL in the Northern District of Ohio, and the Sixth Circuit’s action raises the question whether appeals like this should be more common in MDL litigation—a question the federal civil rules committee is taking up right now.  Please join us for a discussion of the Sixth Circuit’s decision and whether it bolsters or undermines the need for a rulemaking to facilitate appeals in MDL cases.

Featuring: 

Robert Keeling, Partner, Sidley Austin LLP

Tim Pratt, Formerly General Counsel at Boston Scientific

 

 

This call is open to the public - please dial 888-752-3232 to access the call.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is titled "Lightning Strikes: A Successful Appeal in the Opioid MDL and Whether We Will See More Interlocutory Appeals in MDLs." My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us Robert Keeling, who is a Partner at Sidley Austin and co-chair of Sidley's E-Discovery Task Force. We also have Tim Pratt, who is Formerly General Counsel at Boston Scientific. After our speakers give their opening remarks, we will then go to an audience Q&A. Thank you both for sharing with us today. Tim, the floor is yours.

 

Tim Pratt:  Thank you, Micah. Hello, everyone. Thanks for joining.

 

Just a little bit of background on why in the world am I here talking to you about this. I've got some unique experience. I'm not saying it's entirely unique, but it's fairly unique, I think, because I spent 30 years at Shook, Hardy & Bacon in Kansas City. I was a national trial lawyer. I was involved in a number of MDLs, and I was the lead MDL counsel for the defendant in the single-defendant Guidant defibrillator litigation up in Minnesota. So I actually lived and breathed this for most of my career.

 

In 2008, I was hired away to become the general counsel and corporate secretary at Boston Scientific. In my ten years there, I was involved in MDLs as well, including one of the largest MDLs ever, which is a pelvic mesh MDL.  So I've seen it from the standpoint of the outside counsel, the advocate, as well as the invoice-paying client in that setting.

 

I've also been involved in some legal organizations. I spent three years on the board of DRI. I was a past president at Federation of Defense & Corporate Counsel. Maybe more importantly to the discussion, I am a past president of Lawyers for Civil Justice. I was in the forefront of trying to get these rules changed to allow for interlocutory appeals.

 

Before we get to the good news that Robert has to say about the success he had in the opioid litigation, I'd just like to address what's this hubbub all about. Why do we care about interlocutory appeals in MDLs?

 

I want to talk to you about numbers a little bit because things have really changed a lot in the over 50 years since § 1407 was adopted and authorized the creation of multi-district litigation. That was back in 1968, and it was enacted because Congress recognized an overwhelming burden on the federal courts that arose out of a single litigation in the electrical industry antitrust cases.

 

Just before that, there were 1,900 cases that were spread out over 36 districts. That was a catastrophe, as some people said, that overwhelmed the federal court system.

 

At the end of September 2019, there were 134,000 cases pending in 194 MDLs. Not 1,900, not 19,000—134,000 cases pending in 194 MDLs. That represents 46.7 percent of all pending federal civil cases. 46.7 percent. And, of course, as many of you know, that's dramatically increased. In 2002, MDL cases only constituted 16 percent, and now they're 46.7 percent. Most of these, though, even though there are 134,000, almost 122,000 of those are just in 22 of the 194 MDLs.

 

And the final point that relates to the appellate review process: these MDL cases are not equally distributed across all of the circuits. For example, in the Tenth Circuit, there are only 6 MDLs with a total of 95 cases, and it makes up only 1.4 percent of all cases in that circuit.

 

In contrast, in the Fifth Circuit, there are 51,577 MDL cases, and that makes up 71 percent of all civil cases there.

 

Third Circuit has almost 30,000, and that makes up 66 percent of its civil cases. So they're sort of unequally distributed, if you will, across the various circuits, with the Fifth and the Third getting, actually, most of them.

 

And so, the problem is these things are growing, and they're growing fast. The problem is that defendants are beginning to get a little more dismayed with the whole MDL process. You get trapped in it. The numbers are great. You have things like this cottage industry of lead generators and advertisements and third-party litigation funding that's driving more and more numbers coming in. People file cases without really the merits being addressed; they're frivolous cases, and there's no real vetting process to get rid of them. And, once you're involved with it, the judge wants to force settlement, in many instances.

 

So it's turned into, in the perception of some, almost a claims processing situation versus a merit-determination situation. So that's the scenario. That's what we're dealing with with MDLs, and why we're really starting to look at what we can do to allow for more timely and effective appellate review of what an MDL judge does.

 

And you say, "Well, aren't there tools around? You can take a writ of mandamus. Why not that?" So, Robert, if you could talk a little bit about is writ of mandamus a real effective way to allow for appellate oversight of what an MDL judge does on significant rulings?

 

Robert Keeling:  Yeah, Tim. Again, thanks for everyone else for having me.

 

And, obviously, talking with you here today, Tim, about a really important topic that, as you kind of laid out with the numbers, with the MDL proceedings has a really outsized impact on federal litigation today.

 

      You kind of pointed to some of the issues that we have with the numbers, and particularly, the size and the proportion of the number of cases that are in MDL proceedings. And that means that the rulings of the MDL court on pre-trial discovery issues have that much greater of an effect on those cases.

 

      As you were saying, if you have 95 cases in one circuit and you get a discovery ruling that is problematic and maybe isn't what it should've been, well, that's one thing. But if you have 55,000 cases, like you mentioned, in the Fifth Circuit, and you get -- obviously, some of those cases are accounting for the bulk of those numbers. If you have 10,000 cases and you get a negative discovery ruling, that affects all 10,000. Well, now your exposure as a defendant is that much more and really exponentially more.

 

The problem there is that your recourse is extremely limited; that parties tend not to file mandamus petitions when they get negative discovery rulings, in many cases, because the likelihood of success is low.

 

On top of that, it oftentimes creates issues with how the district court proceedings -- whether there's going to be a stay for the underlying discovery issue and what is going to happen with the rest of the proceedings. And, obviously, litigants are concerned about creating issues with that district judge.

 

      But really, the problem is it takes a lot of time to hear the mandamus. They're rarely granted. And then, many times, the mandamus court will defer to the discretion of the district judge. And so all of that ends up meaning that mandamus is really, now, an extraordinary remedy as opposed to effective appellate review of impactful discovery cases.

 

Which is a problem because some of these discovery matters or discovery rulings really impact whether the case can go forward or not. If you have 10,000 plaintiffs and you get a very bad discovery ruling, well, that could be the difference between having to settle, as a corporate defendant, on favorable terms or not.

 

      And so it can be case determinative, but the underlying rules about how mandamus petitions are granted typically doesn't treat them as case determinative. I don't know if that's been your experience as well, Tim, in either your practice or with LCJ or other organizations.

 

Tim Pratt:  Yeah, absolutely, absolutely. I'm sort of stuck, Robert, by what the Supreme Court has said about mandamus and said it's only available in exceptional cases because it's disruptive to the judicial process and creates disorder and delay in the trial.

 

      And so, some people in the audience -- do you have anything else on writs of mandamus, Robert, before I talk about the other avenue?

 

Robert Keeling:  No, no. Go ahead.

 

Tim Pratt:  Okay. So, some of you may be, you legal scholars, may say, "I don't know why you're fighting for this. There's already an interlocutory appeal provision in the federal statutes." And it is. It's 1292(b), and here's the problem with it. Actually, two problems with it in the MDL setting.

 

      Two components have to be satisfied before a 1292(b) interlocutory appeal is allowed. One, there has to be a "substantial ground for difference of opinion," and two, "that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Those are the standards. And sometimes, when you're dealing with a lot of, even important, motions, someone may say those have not been met. Certainly, the plaintiff's lawyers are going to argue that has not been met.

 

      But the real serious underlying problem with it is the judge who has the veto power over whether those standards are met or not, under 1292(b), is the MDL judge because 1292(b) only works if an MDL judge says, "These have been met, these two components, and the appellate court, I urge you to take this appeal."

 

So, as a result of all of that -- and a lot of work has been done by John Beisner of Skadden Arps, really good work that's been submitted as part of the rule-making process I'll talk about, on how 1292(b) has actually been rarely invoked, and when invoked, has been rarely granted by the MDL judge.

 

Those of you who've handled MDLs understand to go to your MDL judge and say, "I think you're wrong on this and I want you to allow this thing to go up on appeal," one, there's a futility aspect to that. The judge may well say, "No, I'm not going to do it. I'm running this thing. Materially advancing the termination of the litigation is for me to do a bunch of bellwether trials, and that's what I'm going to do, and you can take it up as part of the final judgment." And then you run the risk of your retention, too. A judge may go "You're trying to disrupt what I'm trying to do here."

 

There's a natural sort of impediment to going to an MDL judge and trying to get 1292(b). So, what you're stuck with, in most instances, is you try a case, you have post-trial motions, and then, after all of those are decided, sometimes two, two and a half years into an MDL, then it goes up on appeal for the appellate court to decide whether all that this judge had done in connection with the trial and the pre-trial rulings should be set aside or not after significant expense, a lot of delay, and often, after a lot of [inaudible 00:13:34] settlement.

 

Deciding the merits on appeal three, four years after the MDL starts is really not a very effective way to do it.

 

What parties do, and to the opioid litigation, they look for opportunities, when they see a plain error, to deal with the judge but file a writ of mandamus action and try to get the appellate court to come in and do something right. Even though it's hard to get and may create some irritation, some parties have done it to great success. And you have people like Robert, who was involved in the major success before the Sixth Circuit.

 

So if you could just tee that up a little bit and get some background and what happened, Robert, it'd be great.

 

Robert Keeling:  Yeah, sure. Perhaps, before I get to the Sixth Circuit case involving MDLs that Tim was referencing, it might be helpful to give some folks some background.

 

I should start that I wasn't involved in the underlying litigation. My involvement was I filed an amicus petition to the Sixth Circuit on behalf of the Chamber of Commerce of the United States and the National Association of Chain Drug Stores in support of the mandamus petition.

 

So, that said, to give a brief overview of the opioid MDL and how we got here: The opioid MDL was formed when the MDL judicial panel consolidated -- it was more than 2,000 pending lawsuits at the time, kind of related, broadly, to all parts of the opioid manufacture and supply chain.

 

Now, obviously, I should say that underlying the opioid lawsuits, I think everybody is familiar, is, obviously, a real health crisis with, obviously, hundreds of thousands of Americans becoming addicted to opioids over the past couple decades.

 

That issue has led to, and the severity of the epidemic, has prompted, among others, state and local governments to address the issue, not only through legislation or executive actions, but also through court challenges they have filed around the country against opioid manufacturers, distributors, or other supply chain entities.

 

So those suits were proceeding separately in state and federal courts around the country. They were then consolidated in the opioid MDL, and it was consolidated in the Northern District of Ohio before Judge Dan Polster.

 

Like I mentioned, the defendants here included all parts of the supply chain, and that included the manufacturers of the opioid-related medications, the large pharmacies, but also individual pain clinics or physicians and the like. So with so many plaintiffs and defendants, the claims, very significantly, but broadly speaking, the plaintiffs alleged that the companies, or the defendants, took part in fueling the opioid crisis in exchange for revenue, basically. That the drug makers overly aggressively marketed the opioids while kind of downplaying addiction risks. And then, the distributors failed to detect or report suspicious orders.

 

These cases, similar to the tobacco litigation, the plaintiffs were seeking costs incurred from expending -- result of this crisis, including costs for medical care, drug treatment, law enforcement, things like that.

 

Obviously, the defendants maintain that the medications were highly regulated, monitored by federal officials, the pills were only distributed after a licensed physician wrote a prescription, and the like. So the suit was joined and proceeding on a lot of different fronts, including there were some bellwether cases that were set to be tried.

 

What we're talking about, the Sixth Circuit opinion, here, it relates to a writ of mandamus filed by the national retailers, including CVS, Rite-Aid, Walgreens, Walmart, and the like. It arose out of cases filed by two Ohio counties, and it related, basically, to three broad issues.

 

Underlying this, the district court allowed these two counties to amend their complaint to allow new claims based on new facts that would require new discovery and allowed it months and months after the deadline for amendment had passed.

 

The court then overruled the defendants' objections, including that this shouldn't be allowed, basically saying that the arguments would be better taken in the context of a single case, but how those objections lose their import in the context of an MDL. And the court said, basically, "We're going to get to this discovery anyway, and these claims eventually, so might as well do it now."

 

And, similarly, along that lines, the court did not allow—refused to entertain, I should say—the defendants from filing a 12(b) motion to dismiss. And, also, in discovery then, the court ordered the production of a state, regional, and nationwide prescription information, even though the underlying dispute related to just two counties. So, basically, requiring data on every prescription filled by pharmacies around the country over—I think it was a period of about 20 years.

 

So the pharmacies sought mandamus and argued that not only was it overbroad, but it didn't take into account protecting the personal and sensitive pharmacy and private information at issue.

 

Basically, underlying the mandamus petition, was the argument that the Federal Rules of Civil Procedure apply to MDL proceedings, that there's nothing so special about MDLs that different rules should apply, and that MDL courts shouldn't be allowed to make up procedures on an ad hoc basis, which is, in essence, what the district court was doing here.

 

There were several amicus filed as part of this. As I mentioned, we represented Chambers. When our focus was on Rule 26 and proportionality in the context of MDLs, and basically urging the Sixth Circuit to apply the proportionality requirements in all aspects of federal litigation, including MDLs.

 

LCJ also filed an amicus in support. Their argument focused on the point that MDL courts are bound, generally, by the federal rules, and that there was no MDL exception. Somewhat unusually, we were joined by the ACLU, who filed their own brief focusing on the serious privacy concerns raised by the district court's discovery order, and basically saying the order would violate those patients', or implicates, their rights under the Due Process Clause in the Fourth Amendment.

 

Again, despite that, as we're talking about, the deck is kind of stacked against the defendants here about granting the petition. But, somewhat surprisingly, the Sixth Circuit took up the mandamus petition and sustained it in large measure. Basically, it allowed prescription-level data for the State of Ohio, but otherwise, sustained all of defendants' arguments.

 

I think it's important for a number of reasons. One, not just it was a successful mandamus petition in the context of an MDL, which in and of itself would be important and unusual, but I think it's also important for the language that was used.

 

The court had a lot of strong language, including, it started right off the bat saying that—I think I have it here. "The rule of law applies in multi-district litigation just as it does in any individual case." So basically, the court found that every case in an MDL retains its individual character, which, I think, should've been a common-sense proposition, but it's really important, I think, to hear from an appellate court.

 

A lot of what the court then said flowed from that premise. It ruled that an MDL's court determination and the parties' rights in an individual case must be based on the same legal rules that apply in other cases.

 

And then, of course, it also held that an MDL court, it has broad discretion to create efficiencies, but it can't disregard the federal rules in the name of those efficiencies, which I think is particularly important. That the Sixth Circuit found, again, just looking at this, that "An MDL court must find efficiencies within the civil rules rather than in violation of them." So, in other words, the name of efficiencies can't get a court around the federal rules.

 

It also held that the requirements for MDLs are not only the same as ordinary litigation -- but your final colorful quote: It said, "But MDLs are not some kind of judicial border country where the rules are few and the law rarely makes an appearance." So that was a particularly good one. Instead, basically, the individual cases retain their separate identities.

 

So it held that, basically, allowing the amendment claims were at use of discretion and should not have been allowed. And, because of that, it held the other points, including the proportionality analysis, were moot. But still, I think it's a really important ruling and, in particular, really important language that might flow from it.

 

I don't know, Tim, if you have any thoughts on that?

 

Tim Pratt:  Yeah, I think that dummy is a great opinion and congratulations for you and everybody involved with it.

 

      I think there's a little bit of risk that people go, "There you go. Now we've got some control and review of MDL judges, so what's everybody worried about?" And I think that this was maybe the exceptional case. And what we've been trying to do is to not make appellate review an exception. It's to make it more timely and more readily available to the litigants, Robert.

 

Robert Keeling:  Yeah, exactly right. And that is the challenge. I completely agree. That one opinion does not make a trend. I think it's important and informative to MDL proceedings around the country, but it's really that the structural issue, as you said, interlocutory appeals or mandamus issues creates a lot of hurdles for correcting decisions that just went too far in an individual MDL proceeding.

 

Tim Pratt:  Right, exactly. I thought I would spend a little bit of time talking to you about -- given that we believe, a lot of people believe, that MDL judges, their rulings, should have more timely and effective appellate review. What's been going on in that front -- and there are a number of great organizations involved in civil justice reform: Institute for Legal Reform, which is part of the Chambers, is one phenomenal group, and they do good work. But Lawyers for Civil Justice really focuses on the Federal Rules of Civil Procedure.

 

      I want to spend just a second letting you know what's involved in changing the rules. I'll do this quickly because it's a long, difficult, tortuous process, if you will.

 

The Judicial Conference of the United States Courts is really the ultimate group in charge of changing the rules of civil procedure. And the Judicial Conference has created what's called a "Standing Committee," and it's made up of five advisory rules committees. There's Bankruptcy, there's Appellate—I'm not going to get them all—there's Civil.

 

But the one I want to talk about is the Advisory Committee on Civil Rules because that's the one that really has the authority to look at the Federal Rules of Civil Procedure and make changes. That committee is made up of roughly 15 members. They have a chair, they've got a reporter, they've got a lot of federal judges, both appellate court and district court judges. They have some practitioners, generally a couple on each side of the bar, if you will.

 

And they sit there and are presented with proposals. They evaluate those proposals. If they see a need for a change, they'll make a recommendation to the Standing Committee for the rule to be changed. That will open up public comment, written commentary, and that process goes on for quite a while where you actually testify in front of the Civil Rules Advisory Committee.

 

They take that information and, if they still agree that a change should be made, they make a recommendation to the Standing Committee. The Standing Committee, if they agree, will make the recommendation to the Judicial Conference. The Judicial Conference will then send it to the U.S. Supreme Court, and the U.S. Supreme Court will then, if they agree, send it to Congress.

 

And, thank God, it's one of these examples where, for Congress to tinker with that, they have to stop the process. It's not that you need approval from Congress; their authority is simply to mustering up opposition to it that they would say, "We're not going to allow the change," which really doesn't happen given all the work that goes into these changes.

 

Back some years ago, way back in 2017, LCJ saw that there was a problem with MDLs. Actually, lots of problems. And I cited some data, by the way, early on in this teleforum. To those of you who wrote all those things on can now regret it because you can get all of that data on the website that LCJ recreated called rules4mdls.com. A lot of good information there on infographics and things like that that will be helpful to you.

 

Back in 2017, LCJ made a proposal to the Civil Rules Advisory Committee to make many changes in MDLs. Changes in the vetting of cases before they're filed, or shortly after they're filed; changes in the bellwether process; a proposal to require disclosure of third-party litigation funding in connection with the litigation; and a request that allowed for more ready interlocutory appeals under appropriate circumstances. So that was in August 2017.

 

In November 2017, the Civil Rules Advisory Committee created a subcommittee that was going to focus on MDLs. That subcommittee is still active and involved. There were a number of submissions by LCJ as well as the plaintiffs' bar because they're very involved in this process as well. Like I said, it's a real battle.

 

LCJ made another proposal in April 2018. There was a meeting of the MDL subcommittee with LCJ representatives back in September 2018. More information was provided in October 2019. The MDL subcommittee sat down with representatives of the defense side and the plaintiff side to have an open debate, oral argument, on what changes ought to be made. It's like an oral argument that goes on for like four hours, so you can imagine it.

 

Again, in March of this year, LCJ even filed another proposal to address the three things that the MDL subcommittee said that they're really looking into. Third-party litigation funding isn't on the forefront of that, though we haven't given up on that. Change to bellwether process isn't on that, but we haven't given up on it.

 

The three areas are: the early vetting of the claims that are filed, number one. Number two, interlocutory appeal made the cut, and then, one that really not many people talked about. It dealt with judicial oversight of settlement of MDL cases as in class actions. That's new, and I'm not sure where it's going to go. LCJ has really raised questions about whether anything like that's necessary. I really think there's no need for something like that, but we'll see where that goes.

 

I submitted an op-ed to Law360 in April of this year. Plaintiff responded. Data has been generated. I mentioned John Beisner and the plaintiffs have come up with their own "data" to try to convince the Civil Rules Advisory Committee that no change should be made; that everything's just fine the way it is.

 

I want to just take a moment to let you know where things stand right now. In doing this, I thought the most effective way to do it was to present what the plaintiffs said on a point, what LCJ has said on that point, and where I see the Committee leaning. And if there's a Committee member here, I'm not being presumptuous. I'm not a prognosticator. I'm not on the Committee, so I can be completely wrong on it, but I thought it would be helpful for me to kind of distill, for this group, where I think the Committee might be leaning at the present time. It all can change because they're still gathering data.

 

One thing the plaintiffs say is that defendants aren't using the tools that are available to them right now. They're not filing writs of mandamus. They're not using 1292(b). As I mentioned, one reason defendants aren’t doing that is because the standards are too high. There's a lot of futility, and the risk of irritating your MDL judge. So that's really not an effective way—mandamus, 1292(b)—to do it. And the final judgment rule isn't working because of the delay.

 

I think the Committee sees that it's a little bit -- maybe something needs to be done. They see the problems. They've seen MDLs. We presented data on how long it takes for a case to get heard. You have bellwether trials and it takes another year and a half before the MDL judge decides the post-trial motions. And then it goes up on appeal, so it's basically four to give years into it before you get any appellate review of the merits.

 

And, no matter what people say, merits really ought to count when you're involved in MDL litigation or, indeed, any litigation.

 

So that's the first issue.

 

Plaintiffs have repeatedly said that you can't have interlocutory appeal in MDLs because it'll just cause delay. I takes two years for cases to wind through the appellate courts to get an opinion. It's going to allow state litigation over an MDL litigation and this is just crazy. We can't have these kinds of delays.

 

What we say is if you have a bookend from the beginning of an MDL to the end of an MDL, there's always going to be some appellate time built into that. So, instead of waiting for that appellate time to be at the very end, after all the pressure is put on the defendant, move it up earlier. So there may be some delay associated with it than if you wait until the final judgment rule comes into play, but it's important that you do it earlier rather than later. And whether you do two years from years one to three, or two years from years four to six, doesn't really make much difference in terms of delaying the ultimate outcome of the MDL.

 

What the plaintiffs also say is you can't have things just stop while the case is up on appeal. If an MDL just, what, paralyzed for two years while it's up on appeal?

 

What we've said, as defendants, is that well, that doesn't make sense because we're not saying you have to stay proceedings at the MDL while the case is up on appeal. You can still do some things. You can do discovery, but you don't have to stop everything.

 

And I think the Committee is sort of -- they're still bothered by the delay issue. I think the Sixth Circuit opinion maybe highlights for them the importance of an appellate court getting involved sooner rather than later. I think they understand that it's a little bit unfair to defendants for them not to really get an appellate determination on the merits until four years into an MDL.

 

And I don't think there's any traction on the Committee for an automatic stay while the case is on appeal. I think their view is it's going to be up to the district court and the appellate court to figure out what can be done if they allow interlocutory appeal in the middle of it.

 

So the plaintiffs also say, "Well, the defendants are going to use this for delay and disruption. Every single ruling of the MDL judge they're going to try to take an interlocutory appeal."

 

We haven't said that, as LCJ. Now, we agree that the rulings that go up on interlocutory appeal are those that are significant and dispositive of a great number of cases. You may be dealing with preemption, Daubert, general causation, a number of fear claims and whether those, maybe 60 percent of the litigation, whether they can proceed. We agree it has to be really important, and it has to be rather dispositive of a great number of cases.

 

I think the Committee clearly believes that they're not going to allow for routine review of MDL rulings. But I think where they are is "How do you define which go up and which go down?"

 

The other argument plaintiffs make is that this is going to overwhelm the appellate court system. Interestingly, when you read tea leaves, I think the appellate courts would actually like to be involved maybe a little earlier in some of these significant MDL. And particularly on the potentially dispositive rulings. You may certainly shorten an MDL, if you can.

 

And, by the way, I think everybody agrees that it's not a mandatory appeal to the appellate court. I think most people believe that it's permissive for the appellate court. You make an application to the appellate court who then will decide whether this is the kind of case that should be taken up or not. I think it's pretty clear that the Committee is leaning toward the permissive nature of that; not mandatory and leaving it to the appellate court to decide how much of these things they would accept.

 

Those of you who are involved in a class action may remember 23(f), which allowed for the appeal of class certifications that are either granted or denied. And people say, "That's crazy. You're going to deny a class, they're going to go up on appeal, and it's going to be crazy and disruptive and it's going to paralyze the lower court." The evidence is that's not happened at all under 23(f).

 

So that's the kind of thing we're arguing will likely happen here. MDL judges still have a lot of control over things. There was a -- I believe it was in 1292(b). They should not. We don't want to have that mechanism where they have a right to veto it.

 

But I think the Committee would like to hear from MDL judges, and I think they may even be thinking about the appellate court, in deciding whether to take a case, might want to solicit the input from the MDL judge on whether the appellate court ought to take it or not. So it won't be completely knocked out of it.

 

The other challenge, and I think the final thing that we have is that -- and this is what the Committee is trying to deal with as well, is that, as I said with the statistics, only a few MDLs have most of the cases.

 

The plaintiffs say, "Well, why are you creating a rule for all MDLs when most MDLs, the smaller ones, they don't have these problems. They're faster to conclusion, fewer number of parties, fewer number of issues, and you don't really hear these people screaming that change ought to be made." And that may be the case because the biggest complaint that you see are in these mass tort cases; the big ones that have most of the cases.

 

What the Committee is looking at -- and we've sort of said, LCJ in one of these meetings with the subcommittee, it should apply to everybody, all MDLs. Because even in a small MDL, it may be important to get early appellate review through an interlocutory avenue rather than not. And I think the Committee is trying to wrestle with do you do it all of them or you really try to define a size or complexity that would allow them to be used in some cases and not in others.

 

We make the point and argument that there's an argument here that it's really an unbalanced process for defendants because we get hit with discovery, we get hit with the bellwether cases, and we have to wait until final judgment after it's over if we lose the pre-trial motions.

 

If the plaintiffs lose the pre-trial motions, they can go up on appeal immediately. So the point we made: it's just an element of fairness that if they can go up à la 23(f), then why shouldn't the defendant be allowed to go up?

 

I think there's a lot going on. I think there are a lot of people involved in this. LCJ is at the forefront, but ILR and all these other organizations in defense—DRI, FDCC, IADC—all of them are involved in trying to bring some needed change to this and allow for interlocutory appeal of some significant issues in a timely fashion. And I think that's where we are right now.

 

I don't know, Robert. I've been going on a while. I don't know if you have any thoughts on this before we, perhaps, open it up to some questions.

 

Robert Keeling:  No, I think, one, the LCJ's work here has really been great in really trying to advance the law here and make some good, needed reforms.

 

      Personally, I think the difference on allowing having this be permissive review rather than mandatory review is an important one, and I think really meets the counterarguments here on these points.

 

      And then, I think, if there was sufficient permissive review, you would get, within just a matter of a couple years, some good body of case law on these discovery issues in the MDL context, which then could provide guidance to the litigants going forward.

 

Which, really, you don't have right now. You're basing a lot of the decisions or how the litigation progresses based off of rulings by special masters or magistrate or district courts, and to have the views of the appellate courts here more often, I think, could only help how MDL litigation proceeds.

 

Tim Pratt:  Micah, before I turn it over to questions—you can kind of start that process—I wanted to make one other comment on this, and that is, as part of this rulemaking change -- I told you the plaintiffs' lawyers are opposed to really any change in this regard. They like the system as it is, and I understand that.

 

But the other group that tends to be a little resistant to this are, as you might expect, MDL judges because they have important job to do and they think—and rightfully so—they need to have the tools to be able to do it, and that this appellate oversight, at a point when they may not think it's important, may be detrimental to their management of MDLs.

 

      Not to overstate, I think there are a number of MDL judges who don't support a rule change. I think there are a number of appellate courts are kind of back and forth between the two of them, and I think some of them would like to be involved.

 

      So you've got a lot of dynamics here that you have to manage and this subcommittee, and eventually the Civil Rules Advisory Committee, will be the one to take a look at, based on all this data, should we make a change? And if so, what's that change look like?

 

      And then, it opens up for comment, and then it all goes again. And I hope everybody here will join the queue and testify before the Civil Rules Advisory Committee to support any rule change. It's a process that will take a long time yet to come; and it's already taken quite a bit of time since 2017.

 

      Micah, you want to open it up to Q&A?

 

Micah Wallen:  Absolutely. Let's go ahead and open up the floor for some audience questions. We have a few questions lined up, so we'll move to our first question.

 

Brian Fitzpatrick:  Hello, this is Brian Fitzpatrick at Vanderbilt Law School. I just wanted to thank you both for doing this. It's a very important issue.

 

      I agree with you, Tim, that the district judges that are given these MDLs are not going to like more interlocutory appeals, and I don't think we have to be romantic about it. I think we can be realistic about it. MDL judges are the most powerful judges in America. Forget your Supreme Court Justices. These judges, singlehandedly, have entire industries in the palms of their hands, and they don't want to lose that power. So they are not going to like this idea, but that doesn't mean it shouldn't happen.

 

      I think we have given these judges way too much undiluted power and something has to be done to provide some checks and some balances before they bankrupt an entire industry with some of their rulings.

 

      Now, in my discussions with the people on the subcommittee looking into this, the biggest sticking point that I feel they are wrestling with is how to define what orders are allowed to use this interlocutory appeal that they might confer in MDL cases.

 

      And you alluded to this problem a bit in some of your discussion, Tim. But rather than try to define when you can take an interlocutory appeal by referencing, say, a preemption order or a Daubert order -- it's always going to be under-inclusive. There's always going to be something you miss if you try to specify it all in advance. I have advocated for simply giving each side one appeal, one interlocutory appeal, and they can decide when they want to take it so we don't have to specify in advance. We can just let each side decide for themselves when they want to take something up.

 

      And we can debate whether we want to let you appeal everything else that's happened before that order, so you might want to wait until late to take your one appeal, or we can have a rule that just lets you appeal one order and not the things that have come before it.

 

      We can debate which form this idea can take, but I like just leaving it to the parties to decide for themselves, in one form or another, when to invoke this. I kind of analogize it to pro football. We let the head coaches throw the flag when they want the replay. I think it works better because they know best of when something's important, and I think the same is true of litigants in the MDL.

 

      What do you guys think of a rule that does not specific what types of orders but leaves it to the parties to decide when to take one?

 

Tim Pratt:  Excellent points, Brian. I really agree that's one of the real challenges the committee has. That's an interesting proposal you make. I'm also in favor of keeping it a bit discretionary because we have to look at it in the context of what happened in the Sixth Circuit.

 

What standard of interlocutory appeal would had to have been in the rules for Robert to have been in a position to file an amicus in support of that? It wasn't all the parties. So it's kind of interesting, but I agree. That's one of the big challenges the subcommittee is having.

 

Robert Keeling:  Yeah. For what it's worth, I would probably -- I think it's a great idea, Brian. And you're right that it's hard to set these out ahead of time because, as you mentioned, the example, Daubert. Some Daubert motions are for experts that are nice to have, and some are for experts that are need to have. So just allowing them across the board, I could see where plaintiffs would have issues with that.

 

      As a litigant, I guess I would prefer like three challenges, like the pro football coaches that you alluded to. One definitely gets into a lot of gamesmanship about when to invoke it if you just have one. Whatever the number is, it's kind of beside the point.

 

I think the central point is that I agree with your concept that giving the litigants that decision over this is probably more efficient, practically, than trying to set out every possible area ahead of time about where those appeals could be taken.

 

Micah Wallen:  In the meantime, there are no other questions in the queue as of now. In the meantime, I'll toss it back to our panel to see if there's anything else you wanted to cover before we close today.

 

Tim Pratt:  I think the only thing I would say in closing is that, like I said, there are a lot of great organizations involved in seeking rule changes at the state court level, federal court level, Congress, and I've just been privileged to be a part of that process for a long time even when I was working at Shook, Hardy & Bacon and as a member of LCJ.

 

Boy, there's a real satisfaction of being a part of a process that results in important rule changes. It's a hard, as I mentioned, and torturous process, but it's one that's really satisfying. And I just urge the lawyers on this call: Look for an opportunity to get involved because you can make a difference for the system, for the parties yet to come, for your clients. Clients like this, by the way, speaking as a general counsel. Let me repeat that: Clients like to see their lawyers out there involved in trying to level the playing field and making it better.

 

Certainly, on this issue, which is evolving, your input would be great. But look for an opportunity to use your voice. Speak up, join organization, do things that really allow you to get out of the office and not bill hours. Really do something that's maybe more fulfilling and satisfying than winning a case.

 

Robert Keeling:  Yeah. Just, for me, I completely agree with that, Tim. I think the point here is that -- I don't know if anybody thinks that our current MDL system is perfect, not even the most strident plaintiff would believe that. And so there is significant room for improvement here.

 

      I think, for what Tim is saying, I think the more folks who get involved with trying to improve this and other aspects of the federal rules, I think the better off that we all are.

 

Micah Wallen:  All right. Not seeing any other question in the queue. I'll assume that question was answered previously, and I'll go ahead and close this out for today.

 

On behalf of The Federalist Society, I'd like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at info@fedsoc.org. Thank you to all for joining us, and we are adjourned.

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.