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Statewide Proceedings, The National Law Journal

October 2003


Most lawyers are familiar with the Judicial Panel on Multidistrict Litigation (MDL). That panel has the power to transfer cases among the federal trial courts to permit cases involving a common question of fact to be coordinated before a single judge for pretrial proceedings. That process is both well known and the subject of a fair body of literature.

Many fewer lawyers, however, are familiar with the state court analogues to the federal MDL panel. It is, of course, possible to have 100 products liability cases involving the same product that are filed in state court in, say, New Jersey. Just as it sometimes makes sense for the MDL panel to coordinate cases pending in the federal courts, it may make sense to coordinate cases pending within a single state's court system. Although the processes for creating statewide coordinated proceedings are not well known, they exist in an increasing number of states and can serve valuable purposes.

Procedures are available in a small number of states.

In a relatively few states there are established mechanisms for creating statewide coordinated proceedings. In California, for example, the Code of Civil Procedure expressly permits parties to file a petition with the chair of the Judicial Council of California (who is the chief justice of the California Supreme Court) asking that cases be coordinated. See Calif. Code Civ. Proc. §§ 404-404.9. The judicial council then appoints a judge to determine whether the set of cases is sufficiently complex and satisfies the requirements for coordination. Calif. R. Ct. 1501. Seven factors to be considered by the coordination motion judge are listed in Calif. Code Civ. Proc. § 404.1. If the coordination motion judge rules in favor of coordination, the judicial council will appoint a judge to hear the actions-the coordination trial judge.

The California process has been invoked several times by litigants, and there is now a fairly well-developed body of law governing the process. See Bernard Witkin, California Procedure § 316 (4th ed. 2001); Darren L. Brooks, "Coordination of California Civil Actions," 19 Pepp. L. Rev. 163 (1991). In contrast to the federal MDL process, the California coordination trial judge has the power to try a coordinated case. Compare Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 37-41 (1998) (MDL transferee judge cannot try coordinated case), with Citicorp N.A. Inc. v. Superior Court, 213 Cal. App. 3d 563, 566 n.3 (1989) (§ 404 provides for "the unified management of both the pretrial and trial phases of the coordinated cases").

Other states have different procedures to coordinate cases. In Pennsylvania, litigants can file a motion with the trial court supervising the first-filed case asking that cases be coordinated. Pa. R. Civ. Proc. 213.1(c) sets forth six factors for that court to consider in deciding whether to coordinate actions pending in different counties and, if so, which location is appropriate for coordinated proceedings.

Mass torts are frequently coordinated in Philadelphia, home to the Complex Litigation Center. When that center opened in 1992, it was the first state courthouse dedicated exclusively to complex mass tort litigation. Pennsylvania has now seen statewide coordinated proceedings in a host of mass tort cases, including asbestos, lead paint, orthopedic bone screws, Norplant, diet drugs, breast implants and others. See Arbittier-Simon-White-Bromley, Philadelphia Civil Practice, PCR-60-61 (10th ed. 2000).

New York recently created an entirely different mechanism to achieve the same result. On Jan. 24, 2002, New York's chief administrative judge added § 202.69 to the Uniform Civil Rules of the Su-preme and County Courts. That section establishes a framework that enables related actions in more than one judicial district to be coordinated for pretrial proceedings, including dispositive motions, before one or more coordinating justice(s) in one or more counties.

On June 2, 2003, the Litigation Coordinating Panel, which was established pursuant to this new rule, promulgated Procedures of the Litigation Coordinating Panel. Those procedures are available online at www.courts.state.ny.us/supcth/ lcpprocedures. In New York, parties seeking to create a statewide coordinated proceeding should apply to this panel. The panel may then order that the cases be coordinated, but the panel does not select the judge who will supervise the proceeding. That choice is made by the administrative judge charged with supervising the local jurisdiction within which the coordinated proceedings are to occur. See N.Y.C.L.S. Unif. Rules, Trial Cts. § 202.69(c)(1). The New York rules differ from the federal MDL statute both in the standards for obtaining coordination and the authority of the coordinating justice to try a coordinated case.

Texas has also recently joined the fold of states with established standards for creating statewide coordinated proceedings. This past June, the Texas Legislature passed, and Governor Rick Perry signed into law, House Bill No. 4. That bill, which became effective on Sept. 1, amended Texas Gov't Code § 74.161 by adding Subchapter H, entitled Judicial Panel on Multidistrict Litigation. This creates a five-member panel appointed by the chief justice of the Texas Supreme Court. That panel is authorized to coordinate cases on a statewide basis for unified pretrial treatment before a single judge.

The panel may order transfer if it determines that the transfer will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of the actions. This is the same standard that applies to creating a federal MDL proceeding under 28 U.S.C. 1407. House Bill 4 also authorizes the Texas Supreme Court to adopt rules for the coordination process. Because the Texas MDL panel has not yet been appointed, however, no rules have yet been drafted.

The states of California, Pennsylvania, New York and Texas, however, are in the minority. In most states, there is no statute or rule that expressly authorizes the creation of statewide coordinated proceedings. In those states, only creative lawyering can cause cases to be assigned to a single judge for more efficient treatment.

In some states, litigants can appeal to the inherent supervisory power of the state supreme court to assign all pending cases to a single judge for coordinated treatment. For example, that technique was used successfully to achieve coordination of breast-implant cases pending in the Oklahoma state courts. In re Oklahoma Breast Implant Cases, 847 P.2d 772, 775 (Okla. 1993).

In other states, however, no decision has yet recognized the authority of state supreme courts to coordinate cases before a single judge. In those states, lawyers can either content themselves with countywide coordinated proceedings or, alternatively, can find what authority exists under state law to convince the state supreme court to create a statewide coordinated proceeding.

There are three primary reasons why litigants seek to create statewide coordinated proceedings. The first is the reason why parties most often ask the federal MDL panel to coordinate federal cases. Multiple related lawsuits may unduly burden the parties or courts if they are processed separately. Depositions would be taken repeatedly, documents would be produced over and over again and courts would rule on similar motions repetitively, and perhaps inconsistently. To avoid this expense and duplication of effort, parties can seek to create coordinated proceedings at either the state or federal level. See generally David F. Herr, Multidistrict Litigation (1986).

Statewide proceedings can effect change of venue.

Parties occasionally invoke the federal MDL process for another reason. When complaints have been filed in many jurisdictions, some of which are viewed as pro-plaintiff and others as pro-defendant, one of the parties may ask the MDL panel to coordinate the cases in the hope that the cases will be assigned to a favorable judge. See Mark Herrmann, "To MDL Or Not To MDL? A Defense Perspective," Litigation 43, 44 (1998). Thus, either plaintiffs or defendants occasionally invoke the MDL process to effect a change of venue.

Precisely the same thinking can occur at the state court level. If lawsuits are filed in one state court that is perceived by the parties as being pro-plaintiff and in a second court in the same state that is perceived as pro-defendant, then either party might seek to create a statewide coordinated proceeding to effect a change of venue. That tactic is not risk-free (it could place both cases before the disfavored court), but it is available.

Finally, statewide coordinated proceedings can also be created to try to influence the federal MDL panel. Among other factors that the MDL panel considers in deciding where to transfer federal cases is the location of related state court cases. See, e.g., In re Oil Spill by Amoco Cadiz, 471 F. Supp. 473, 478-79 (J.P.M.L. 1979). A litigant that wanted the MDL panel to send all related federal cases to, say, the U.S. District Court for the Southern District of New York might thus seek to create a state court coordinated proceeding in New York City. This would allow the litigant to argue to the MDL panel that the existence of a statewide proceeding should influence the location of the federal proceeding. See, generally, William W Schwarzer et al., "Judicial Federalism in Action: Coordination of Litigation in State and Federal Courts," 78 Va. L. Rev. 1689 (1992).

Although the processes for creating statewide coordinated proceedings are not widely known among lawyers, those proceedings are becoming increasingly more important as mass torts become more and more common. Only by understanding both the procedures and the tactics involved in creating statewide coordinated proceedings can lawyers effectively represent their clients.

Mark Herrmann and Geoffrey J. Ritts are partners in the Cleveland office of Jones Day. They are co-authors of the recently published Statewide Coordinated Proceedings: State Court Analogues to the Federal MDL Process (Andrews Pubs. 2003).

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