In mass tort litigation, such as personal injury suits arising
out of airline crashes or product recalls, the sheer volume of
individual suits can present significant challenges for defendants
in efficiently responding to duplicative and overlapping discovery.
Defendants may be faced with responding to overlapping written
discovery and depositions in numerous separate lawsuits involving
separate sets of attorneys. The options to address these issues
depend on whether the case is pending in federal or state court.
Federal multidistrict litigation (MDL) procedure enables effective
consolidation and coordination of related cases. Florida allows
consolidation within a judicial circuit, but state court procedures
lack a similar mechanism for coordination of related litigation
throughout the state.
While each lawsuit arising out of a mass tort presents certain
individualized issues, the lawsuits also involve common issues. For
example, in product liability litigation, written discovery to the
defendants on issues such as the design and manufacture of the
product at issue and communications with regulators will be
duplicative across cases. Similarly, depositions of the
manufacturer defendants' fact and corporate representative
witnesses will address the same or overlapping issues in each case.
Coordination of these types of overlapping discovery among
individual cases makes the litigation more efficient for the
parties and the judicial system.
Federal MDL procedure addresses this situation and allows for
consolidation and coordination of discovery and other pretrial
proceedings in related federal litigation throughout the country.
MDLs are authorized under federal statute providing that:
"when civil actions involving one or more common questions of
fact are pending in different districts, such actions may be
transferred to any district of coordination or consolidated
pretrial procedures." 28 U.S.C. § 1407(a). The goals of
the MDL process are "to avoid duplication of discovery, to
prevent inconsistent pretrial rulings, and to conserve the
resources of the parties, their counsel and the judiciary."
See http://www.jpml.uscourts.gov/panel-info/overview-panel.
The Judicial Panel on Multidistrict Litigation (JPML), a panel of
seven sitting federal judges appointed by the Chief Justice of the
United States, is authorized to create MDLs upon application by a
party. See http://www.jpml.uscourts.gov/panel-info/overview-panel
and Rules of Procedure of the United States Judicial Panel on
Multidistrict Litigation. Once an MDL has been created, a party can
seek transfer of an individual case to the MDL by filing a
"tag along" notice with the JPML. Regardless of where the
MDL is established, cases from any federal court in the country can
be transferred to the MDL.
The presiding judge in an MDL establishes discovery and other
pretrial deadlines applicable to all cases within the MDL. The MDL
court also appoints a Plaintiff's Steering Committee and a
Defendant's Steering Committee to coordinate the litigation.
The parties will work to streamline written discovery and
production of documents. For example, rather than producing
documents separately to each plaintiff, the defendants will produce
documents uniformly for use by all plaintiffs and subject to a
single protective order applicable to all parties in the MDL. In
addition, the court may appoint a special master to address
discovery matters such as coordination and scheduling of
depositions. The parties will arrange for a single set of
depositions of the defendants' witnesses, with the testimony
available for use in all cases within the MDL.
Florida state court procedure also allows for consolidation of
related cases for discovery and other purposes. Florida Rule of
Civil Procedure 1.270 provides that: "When actions involving a
common question of law or fact are pending before the court, it may
order a joint hearing or trial of any or all the matters in issue
in the actions; it may order all the actions consolidated; and it
may make such orders concerning proceedings therein as may tend to
avoid unnecessary costs or delay." Fla. R. Civ. P. 1.270(a).
However, there is no Florida state court equivalent to the JPML to
oversee consolidation of related cases.
Moreover, in contrast to federal MDL procedure, consolidation under
Rule 1.270(a) has been limited to cases pending within the same
judicial circuit. The rule is broad in permitting consolidation for
trial only, discovery only, or for all purposes, but Florida courts
have applied it to permit consolidation of cases only within the
same judicial circuit. These decisions note that, under the rule,
actions "pending before the court" may be consolidated,
and conclude that this phrase refers to cases pending within the
same jurisdiction. See Wetherington v. State Farm Mut. Auto. Ins.
Co., 661 So. 2d 1276, 1277 (Fla. 2d DCA 1995) (ruling that a case
pending in the Thirteenth Judicial Circuit could not be
consolidated with a case pending in the Eight Judicial Circuit;
stating in part that "the trial court was without authority to
exercise any jurisdiction over the case pending in the Eighth
Judicial Circuit"); Y.H. v. F.L.H., 784 So. 2d 565, 568 (Fla.
1st DCA 2001) (same).
As a practical matter, then, coordination of discovery in mass tort
litigation pending in different Florida state courts, not within
the same judicial circuit, may depend largely on negotiation among
the parties. This stands in contrast to federal MDL procedures
which allow for consolidation and coordination of related federal
cases throughout the country, regardless of where the cases
originate.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.