United States: And Now A Word From The Panel: 2017 MDL Year In Review

Last Updated: January 25 2018
Article by Alan Rothman

Welcome as we enter our sixth year of "And Now a Word from the Panel," a column which "rides the circuit" with the Judicial Panel on Multidistrict Litigation as it meets on a bimonthly basis at venues around the country.

As we begin 2018, it's déjà vu all over again with the panel returning to its favorite January destination of the state of Florida. As in January 2017, this month's hearing session will take place in Miami, a welcome destination for MDL practitioners who may have spent much of January in arctic conditions elsewhere in the country.

Judging from the panel docket for this month's session, it looks like the panel is off to a busy start. In stark contrast to the trend of the past few years and the relative paucity of MDL motions, the panel will be considering a robust 13 motions to create an MDL proceeding. 1 This is roughly a third of the total number of motions ruled upon by the panel during the entirety of 2017.

Speaking of 2017, let's take our annual retrospective look at panel trends and practice over the past year, and how those compare with prior years. But before taking that broader retrospective look, it is worth taking a quick detour to look at the results from the panel's November hearing session in St. Louis, Missouri. Following its final session of the year, the panel created four new MDL proceedings and denied two MDL petitions (and found one additional motion to be moot in light of the dismissal of one of the two pending actions).

2017: MDL Year in Review

A year ago, this column observed that the panel appeared to be carefully scrutinizing an ever decreasing number of MDL petitions. The past year reflected a continuation of this downward trend. In 2017, the panel batted .475 — creating 19 new MDL proceedings while denying 21 MDL petitions, a slight increase over its 2016 batting average of .473 (creating 26 MDLs and denying 29 MDL motions). 2

Once again, the panel continued its "cleanup" efforts, terminating 43 MDL proceedings, and leaving 221 pending MDL proceedings at the end of 2017 — approximately a 10 percent decrease from the 244 pending MDL proceedings at the end of 2016.

2017: By the Numbers

The chart below compares the panel's 2017 "stats" with those from 2016:

Category                                                                                     2017       2016
# of MDLs Created
19 26
# of MDL Motions Denied
21 29
MDLs Created as Percentage of Total # of MDLs Created/Motions Denied   
47.5%  47.3%
# of Terminated MDLs
43 57
# of New Products Liability MDLs
9 8
# of New Marketing & Sales MDLs  7
# of New Antitrust MDLs  3
# of New Data Breach/Privacy MDLs  4
# of New Securities MDLs  0 1
# of New Intellectual Property/Patent MDLs
1
Total # of MDLs Pending as of Year-End
221 244


2017: Trendlines

There are several takeaways from these numbers:

  • The panel ruled on the fewest MDL petitions (40) and created the fewest new MDL proceedings (19) in decades.
    • But, as noted above, the panel is scheduled to hear a significant number of new MDL petitions (13) at this week's hearing session.
  • The panel continues to create a significant number of product liability MDLs (nine), nearly half of all new MDL proceedings.
    • Product liability MDLs now represent close to a third of the MDL proceedings pending at year-end (70 of the 221 MDLs). 3
    • By contrast, as of the end of 2013, product liability MDLs represented only 23 percent of MDL proceedings (67 out of the then-287 MDLs). 4
  • The panel created no new intellectual property or securities MDLs.

2017: MDL Venues

As we cannot resist one of this column's favorite topics, we look at the panel's 2017 selection of MDL venues.

The new 2017 MDLs are centralized in only 10 states, embodying 11 judicial districts. Out of the 19 MDL proceedings that were created in 2017:

  • 32 percent (six) are venued in the Northeast (Maine, New Jersey, New York). 5
  • 26 percent (five) are venued in the West (California).
  • 21 percent (four) are venued in the South (Georgia, Maryland, Oklahoma).
  • 21 percent (four) are venued in the Midwest (Kansas, Minnesota, Ohio).

2017: Another Word About MDL Experience

In prior columns, we noted that the panel has been sharing the MDL wealth with members of the federal judiciary who have not yet presided over an MDL proceeding. 6 For 2017, the pendulum may have shifted a drop, as 12 of the 19 new MDL proceedings — including three of the four MDLs arising from the November hearing session — were assigned to judges with prior MDL experience.

Also, the panel has considered a judge's prior experience with related litigation. Interestingly, 176 different federal judges preside over current MDL proceedings, which in and of itself "shares the MDL wealth." 7 We will continue to monitor panel trends in this regard.

What lies ahead in 2018 for the panel? Does the jump in MDL petitions scheduled to be heard this week represent a new upward trend in MDL filings? Will the overall number of MDLs continue to decline? Will intellectual property and securities MDLs make a comeback? How many new MDLs will be assigned to judges without prior MDL experience? What new issues will make their way to the panel at the next hearing session?

Stay tuned for our next edition of "And Now a Word from the Panel," as the panel heads to Atlanta for its March hearing session.

Footnotes

1 http://www.jpml.uscourts.gov/sites/jpml/files/Hearing_Order-1-25-2018.pdf.

2 These figures exclude MDL motions denied as moot or otherwise withdrawn.

3 http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Type-January- 16-2018.pdf. As of Jan. 16, 2018, there were 220 pending MDL proceedings, as the panel terminated one (marketing and sales practices) MDL proceeding earlier this month. See http://www.jpml.uscourts.gov/sites/jpml/files/Recently_Terminated%20MDLs-1-1-2018_to_1-16-2018.pdf. .

4 http://www.jpml.uscourts.gov/sites/jpml/files/JPML_Calendar_Year_Statistics-2013.pdf.

5 The regions are based on those used for purposes of the U.S. census

6 See "And Now a Word from the Panel: 5 MDL Lessons," Law360 (Nov. 28, 2017); "And Now a Word from the Panel: MDL Venue Choices," Law360 (Nov. 29, 2016).

7 http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-January-16-2018.pdf.

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