The mechanics of whether and where to consolidate federal cases for pretrial proceedings can get pretty dry.
But that doesn’t mean the judges who make those decisions can’t try to liven up JPML hearings with a little hometown humor.
For those who don’t know it, the U.S. Judicial Panel on Multidistrict Litigation is made up of an impressive slate of six judges from different federal district and circuit courts.
The panel holds hearings throughout the year in different cities.
It met most recently in Washington Sept. 29, and featured a number of high-profile product liability and class suits.
The hearing agenda was ambitious: there were 13 cases up for consideration, with as many as nine attorneys arguing for each. Some wanted consolidation in one court; some favored another; some didn’t want consolidation at all.
Plenty of defendants argue in favor of consolidation at these hearings too. When class cases are involved, why not try and wipe out all of the cases in one blow with a denial of class certification? And some plaintiffs don’t want consolidation so they can retain more control over their cases and clients.
Three hours of attorneys giving three-minute speeches on the advantages of their preferred jurisdiction could get to be a bit boring, and heavy.
The docket included suits with allegations that a widely-prescribed antipsychotic drug caused other, serious mental-health side effects, and that both a popular personal-care product and a pesticide caused cancers.
But luckily the bench was ready to jump in with a joke or neighborly jab to try and lighten up the proceedings.
All the judges are fans of their home jurisdictions, as you might expect.
Judge Charles R. Breyer asked a plaintiffs’ attorney involved in litigation over an employee data breach at Sprouts grocery stores why he was pushing for California, “besides the natural advantages of California of course.”
Breyer, of the U.S. District Court for the Northern District of California, sported a yellow bowtie and, like his slightly more famous brother on the Supreme Court, drew quite a few laughs from the crowd.
When an attorney for plaintiffs alleging Uber sent spam texts complained that Uber wasn’t cooperating—“They won’t even cross the Bay Bridge from San Francisco for hearings in Oakland!”—Breyer sympathized.
I don’t like to cross the Bay Bridge either!” Breyer said.
Judge Sarah S. Vance of the Eastern District of Louisiana got in a few digs at Pensacola when a litigant in the Abilify suits suggested consolidating suits in the Northern District of Florida.
She said those in Louisiana call Pensacola their Riviera, but asked “aren’t they having a big mold problem in their courthouse?”
Abilify is alleged to cause compulsive behaviors, most notably gambling. But Vance was interested in other potential compulsive behaviors—like shopping. “A lot of us have that problem,” she quipped.
Which led another judge to ask, “Are there any casinos in Pensacola?”
A litigant in the talc-ovarian cancer suits tried to make a dig at Louisiana by offering to pronounce Daubert in the French way so Vance could understand. But Vance said, “We know it’s DauberT. We’ve been corrected enough!”
Judge Catherine D. Perry of the Eastern District of Missouri in St. Louis was frustrated with the tendency of some attorneys to confuse her court with the Southern District of Illinois in East St. Louis.
"You all need to understand this,” she said. “St. Louis and East St. Louis are different!”
Judge Ellen Segal Huvelle of the district court in D.C. noticed that the theme of the day was to send all the cases to the Southern District of Illinois. “They can’t all go there!” she said.
That led Judge R. David Proctor of the Northern District of Alabama to ask if the Southern District of Illinois had become the new Northern District of California, once the MDL venue of choice.
Judge Lewis A. Kaplan of the Southern District of New York tried to engage NPR fans in the audience by quoting Prairie Home Companion.
When an attorney argued that suits over the cancer drug Taxotere—which allegedly causes permanent hair loss—should go to Minnesota, Kaplan said: “Where all the women are strong, all the men are good looking, and all the children are above average.”
When an attorney representing plaintiffs in litigation alleging Roundup causes cancer suggested all the suits be moved to Honolulu, Vance asked “Where is Hawaii central to other than the northern Pacific Ocean?”
But Kaplan was amenable to Hawaii, if it meant the panel could all get put on the case by designation for the winter.
The judges will get their chance to visit warmer climes over the winter. The panel’s January and March hearings are in Miami and Phoenix.
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