One of us had an eighth grade basketball coach who promised that, if we played on his team, we'd "eat basketball, sleep basketball, dream basketball!" (Yeah -- he was nuts.)
You might think that we're that way about the MDL process and Lexecon. But we promise -- we don't eat Lexecon, sleep Lexecon, and dream Lexecon. It just bothers us every once in a while.
As readers of this blog know, Lexecon is the 1998 U.S. Supreme Court case that held that MDL transferee judges cannot try cases that were filed in courts other than the transferee district. If, for example, a case was filed in New York and the MDL Panel transferred the case to Chicago for pretrial proceedings, Lexecon says that the Chicago MDL transferree judge cannot try the case; the MDL Panel is obligated to remand the case to New York after the conclusion of "pretrial proceedings" in Chicago.
Legislation intended to overrule Lexecon has been proposed in virtually every year since the case was decided. See, e.g., H.R. 1752, 106th Cong., 1st Sess. (1999); Multidistrict Litigation Restoration Act of 2005, H.R. 1038, 109th Cong., 1st Sess. (2005). Here's today's question: Should that law be passed? Should Lexecon be overruled by statute?
We're of two minds on this issue.
On the one hand, we understand the logic of permitting the MDL transferee judge, who has overseen the coordinated cases for years, to try those cases. The transferee judge is uniquely familiar with the facts involved in the cases and the governing law; simple efficiency suggests that that judge should be allowed to try the cases.
Moreover, some folks believe that the transferee judge is better able to bring the parties to a settlement if the judge has the power to try all of the coordinated cases. There's nothing like a settlement conference on the eve of trial to cause parties to see the light. If the MDL judge can't try the cases, perhaps some of that influence is lost.
On the other hand, real-world experience suggests that placing all cases in the hands of a single judge may in fact decrease the possibilities for settlement. There are at least two reasons for this. First, many brains can be better than one. When a single judge is overseeing thousands of cases, the cases may benefit from receiving uniform treatment, but suffer from the lack of a diversity of approaches to resolving the cases. In the Breast Implant MDL, for example, Judge Pointer (the MDL transferee judge) did not appoint a Rule 706 expert scientific panel until after other judges (including Judge Weinstein) started pursuing that path. Absent the benefit of multiple pairs of judges' eyes, the concept of appointing a Rule 706 panel to induce settlement might never have been considered.
Second, some people believe that MDLs change judges' brains. When a judge has hundreds or thousands of cases transferred to his or her desk by the MDL Panel, the judge may stop thinking about playing a judge's traditional umpireal role in litigation -- calling balls and strikes by resolving motions. Instead, the judge may decide that the judicial role is to mediate a settlement, and that perspective may change the judge's approach to the cases.
In the Orthopedic Bone Screws MDL, for example, Judge Bechtle largely refused to rule on dispositive motions filed during the pretrial proceedings, perhaps believing (as many judges do) that settlement is best induced when issues are under advisement. (The idea is that both sides are then in a state of uncertainty about the outcome and may be more flexible because of their risk of loss.) In Bone Screws, however, the absence of rulings on key issues may have hampered resolution of the cases. Once the MDL Panel began remanding cases for trial, the home courts began ruling on motions for summary judgment. After courts granted scores of those motions, the opportunities for settlement (or outright dismissal) of cases improved dramatically.
Similarly, in the Firestone Tires MDL, Judge Barker certified a national class of millions of owners of Ford Explorers equipped with Firestone Tires. Judge Barker may have certified that class for any one of several reasons. She may have believed, for example, that the law compelled that result. Alternatively, she may have (mistakely) believed that certifying a national class in federal court would preclude competing state court class actions, and that it would be easier to settle the cases if they all remained under a single court's supervision. Whatever her logic, however, the cases were not resolved while the nationwide class remained certified. Only after the Seventh Circuit reversed the certification did the logjam break.
These experiences suggest that overruling Lexecon may paradoxically reduce the chances for obtaining prompt settlements. Permitting MDL transferee judges to try all of the coordinated cases may keep the cases before a judge whose approach to settlement is, for one reason or another, unlikely to succeed.
Finally, there's a chance that it's unnecessary to pass legislation to overrule Lexecon simply because the Lexecon result can easily be evaded. As we noted in our March 6, 2007, post on this topic, some judges believe that the parties can simply stipulate to trial before the MDL transferee judge. If the parties are willing to so stipulate, and if the stipulation is in fact effective to achieve the desired result, then there's no need to overrule Lexecon because the case has little real-world effect.
So there you have it. Should Lexecon be overruled by legislation? Heck if we know. But that's how we think about the issue, and the legislators can take our views into account, if they care to, when they pass the laws.