Multidistrict Litigation

Many people are somewhat familiar with multidistrict litigation (or “MDL”) in the federal courts. MDL refers to a special legal procedure designed to speed the process of handling complex cases such as a single airplane crash or other disaster involving numerous claims or a large number of similar product liability suits (i.e., asbestos cases). In an effort to more efficiently process cases involving a large number of suits pending in different federal courts which all share common issues, the federal Judicial Panel on Multidistrict Litigation decides whether cases should be consolidated under MDL and where to transfer the cases. Cases subject to a particular MDL are all sent to one court for pretrial proceedings, such as discovery. If a case is not settled or dismissed in the MDL court, it is eventually sent back to the original court for trial.

MDLs in the State of Texas

The Texas state court system provides a very similar procedure to consolidate related cases pending in different courts around the state into a single court for pretrial purposes. Sections 74.161-164 of the Texas Government Code provide for a state judicial panel on “multidistrict litigation.” The panel consists of five active court of appeals justices or administrative judges who are selected by the Chief Justice of the Texas Supreme Court.

The panel is empowered to transfer any civil actions involving one or more common questions of fact to any district court for consolidated or coordinated pretrial proceedings, including summary judgment or other dispositive motions, but not for trial on the merits. A transfer may be made by the Texas Judicial Panel on Multidistrict Litigation on its determination that the transfer will: (1) be for the convenience of the parties and witnesses; and (2) promote the just and efficient conduct of the actions. See Tex Gov’t Code 74.161 et seq.

To implement these sections of the Texas Government Code, the Texas Supreme Court has adopted Rule 13 of the Texas Rules of Judicial Administration. Rule 13 provides that “[a] party in a case may move for transfer of the case and related cases to a pretrial court.” Under the rule, a party requesting to consolidate cases in a Texas MDL must “state the common question or questions of fact involved in the cases”; provide “a clear and concise explanation of the reasons that transfer would be for the convenience of the parties and witnesses and would promote the just and efficient conduct of the cases” and “state whether all parties in those cases for which transfer is sought agree to the motion.”

Transfer of Related Cases to Pretrial Court

In addition to the litigants, a trial court or a presiding judge of an administrative judicial region may also request a transfer of related cases to a pretrial court. And the MDL Panel may, on its own initiative, issue an order to show cause why related cases should not be transferred to a pretrial court.

The MDL Panel may order transfer if three members concur in a written order finding that related cases involve one or more common questions of fact, and that transfer to a specified district court will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of the related cases. Orders of the MDL Panel, including those granting or denying motions for transfer, may be reviewed only by the Texas Supreme Court in original proceedings.

The MDL Panel may assign as judge of the pretrial court any active district judge, or any former or retired district or appellate judge who is approved by the Chief Justice of the Supreme Court of Texas. An assignment under Rule 13 is not subject to objection under chapter 74 of the Government Code. The assigned pretrial court judge has exclusive jurisdiction over each related case transferred pursuant to this rule unless a case is retransferred by the MDL Panel or is finally resolved or remanded to the trial court for trial.

Rule 13 directs that the pretrial court should apply ”sound judicial management methods early, continuously, and actively, based on its knowledge of each individual case and the entire litigation, in order to set fair and firm time limits tailored to ensure the expeditious resolution of each case and the just and efficient conduct of the litigation as a whole.” The rule states that the pretrial court has the authority to decide, in place of the trial court, all pretrial matters in all related cases transferred to the court Those matters include, for example, jurisdiction, joinder, venue, discovery, trial preparation (such as motions to strike expert witnesses, preadmission of exhibits, and motions in limine), mediation, and disposition by means other than conventional trial on the merits (such as default judgment, summary judgment, and settlement). The pretrial court may set aside or modify any pretrial ruling made by the trial court before transfer over which the trial court’s plenary power would not have expired had the case not been transferred.

Rule 13 is patterned after the federal MDL process, which seeks to “eliminate duplicative discovery, avoid inconsistent pretrial rulings, and conserve the resources of the parties, their counsel, and the judiciary.” In re State Farm Lloyds Hurricane Ike Litigation, 392 S.W.3d 353 (Tex.Jud.Pan.Mult.Lit. 2012), quoting In re Vioxx Prods. Liab. Litig., 360 F.Supp.2d 1352, 1354 (J.P.M.L.2005) “Rule 13 rests on the premise that a legal system should not give different answers to a question, or allow repetitive discovery, or subject witnesses or lawyers to conflicting demands, simply because the cases are pending before different judges in different parts of the state.” In re Digitek Litig., 387 S.W.3d 115, 117 (Tex. M.D.L. Panel 2009).

Factors in Pretrial Case Transfer

In deciding whether transfer to a pretrial court will further the general MDL goals of convenience, efficiency, and justice, the proper inquiry is whether transfer would: (1) eliminate duplicative and repetitive discovery, (2) minimize conflicting demands on witnesses, (3) prevent inconsistent decisions on common issues, and (4) reduce unnecessary travel. Id. at 116–17. A fifth objective of the MDL process is to allocate finite judicial resources intelligently by minimizing the occasions when different judges decide the same or similar issues again and again. See In re State Farm Lloyds Hurricane Ike Litigation, 392 S.W.3d at 356.

For example, in 2012, the Texas MDL panel transferred to a single MDL pretrial court more than 260 insurance lawsuits pending in sixteen Texas counties that were all arising from damage caused by Hurricane Ike in 2008. See See In re State Farm Lloyds Hurricane Ike Litigation, 392 S.W.3d at 353. The panel found that the cases were are related because they arose from one event and the plaintiffs sought “common discovery on the ground that State Farm has a ‘general business practice; of adjusting claims in a way that is unfairly designed to tilt the process in its favor and against the policyholder.” Id.

As another example, an MDL was created for lawsuits arising out the December 20,2008, Continental Airlines Flight 1404 incident. In route from Denver to Houston, the aircraft caught fire, and the 114 passengers and crew members on board were evacuated. There were no fatalities, but 37 passengers and crew members were transported to a hospital. When the cases came before the MDL panel, thirteen plaintiffs had filed suit against Continental in six different district courts in Harris County. The defendants sought transfer and consolidation of the lawsuits. The panel determined an MDL was appropriate given that that the liability issues raised by the lawsuits would involve testimony from the same fact witnesses and common expert witnesses, such as the flight crew, air traffic controllers, emergency and rescue crew members, weather observers, National Transportation Safety Board employees, and Denver airport personnel. See In re Continental Airlines Flight 1404, 387 S.W.3d 925 (Tex. M.D.L. Panel 2009).

MDL and complex litigation at Heygood, Orr & Pearson

Heygood, Orr & Pearson are very comfortable and experienced with the complex and challenging world of multidistrict litigation. As one example, Michael Heygood and other lawyers at Heygood, Orr & Pearson were designated “Lead Plaintiffs’ Counsel” last year by the federal court that presided over numerous wrongful death lawsuits regarding the Watson fentanyl patch that were consolidated for pretrial purposes in MDL No. 2372 — In re: Watson Fentanyl Patch Products Liability Litigation, before the United States District Court for the Northern District of Illinois.

To be successful in complex litigation such as MDL proceedings, clients need educated, experienced attorneys like those at Heygood, Orr & Pearson. We have the experience and knowledge to guide our clients through class action litigation from beginning to end. And we have the financial resources to help them stand toe-to-toe with some of the biggest corporations in the world through what is often a lengthy, complicated and expensive process.

Contact Heygood, Orr & Pearson for your free case evaluation and to learn more about your legal right to compensation. You can reach us by calling toll-free at 1-877-446-9001, or by following the link to our free contact form.

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