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By Perry Cooper
April 25 — “Forty-five percent of all civil litigation in federal courts falls into an MDL now,” according to Judge Eldon E. Fallon.
And that percentage is growing as the device is being increasingly used for product liability litigation, he said recently. Harnessing technology has been a key ingredient for Fallon in managing several high-profile multidistrict litigations, he said.
Edward Sherman, professor of civil procedure at Tulane University Law School in New Orleans, called Fallon a “pioneer in the creative use of MDLs and bellwether trials.”
Fallon, of the U.S. District Court for the Eastern District of Louisiana, presides over the MDLs involving product liability claims over prescription drugs Vioxx and Zarelto. He also oversaw the Chinese drywall MDL.
Technology is making MDLs more workable as the consolidated caseload gets increasingly larger with more and more attorneys involved, Fallon said.
There are 1,400 lawyers involved in the Chinese drywall litigation. “Everyone wants to do their own depositions—you can’t do that or nothing would ever get done,” he said.
His solution is having the parties take depositions online. The attorneys can log in to “be in the room” and ask questions. And he, the judge, can log in and rule on objections in real time, he said.
He acknowledged that this solution isn’t cheap, but it’s reasonable because of the number of cases and parties involved. And it’s still cheaper than everyone flying in for a deposition.
He also has broadcast trials to remote locations so everyone can watch, even if there isn’t space in the courtroom.
Fallon doesn’t like that he sees the same class counsel in charge of every MDL. “It’s not good for the system or our profession, but what do you do about it?” he asked.
Plaintiffs’ attorney Patrick Pendley, of Pendley, Baudin & Coffin LLP in Plaquemine, La., called this group the “super bar.”
It makes sense that the same firms are always appointed because lead counsel has to “show an ability to lead and control a lot of egotistical plaintiffs’ lawyers, and that’s a very difficult task,” he said. These firms have also proven that they have the wherewithal to finance the proceedings.
Fallon—a former plaintiffs’ lawyer himself—acknowledged that “plaintiffs’ lawyers do not hunt well in packs!” So it’s tempting to appoint only experienced firms that have a track record of getting plaintiffs’ lawyers to work together.
But he said young or inexperienced lawyers deserve a chance to get to that status, too.
He usually appoints 12 attorneys to the plaintiffs’ steering committee, saying, tongue in cheek, that the “number 12 has been good for Western civilization—12 tribes of Israel, 12 signs of the Zodiac.”
Using subcommittees within the steering committee is a good way to spread out the work and give those younger attorneys some experience, Fallon said.
Fallon said he always puts term limits on the leadership appointments. Lead counsel is appointed for a year, and if they want to renew their appointment they have to show how they participated over that year.
This gives Fallon “more control over the situation,” he said.
Appointing a certified public accountant also keeps class counsel in line and help when it comes time to calculate attorneys’ fees, Fallon said.
All attorneys who work on the case reports to the CPA, who then gives the judge a monthly summary. “It’s helpful for me to monitor the litigation, to see who’s done the most work that month,” he said. “And the CPA checks the costs to make sure they are legitimate.”
He gave the example of an attorney in one MDL who wanted reimbursement of $70,000 in travel expenses. When Fallon questioned him, the attorney said fuel for his two private jets was expensive
A chess clock is sometimes called for to keep appearance time before the judge even between the defendants and plaintiffs, including the time they use to make objections, Fallon has found.
“It’s helpful to have the time limits because we lawyers can talk forever on anything, whether or not we have anything to say,” he said.
“Cross examination is a classic example: It’s not the Normandy Invasion it’s a guerrilla raid,” he said. “The Normandy Invasion is wonderful but you lose too many troops.”
Bellwether trials give parties to an MDL a chance to see how real-world juries will react to a certain type of claim, Fallon said.
He explained the origin of the term bellwether: a wether is the lead male sheep, and a bell is put on his neck so he can lead the rest of the flock. So a bellwether trial leads the way for the rest of the cases in the MDL.
Bellwethers give lawyers the opportunity to see how much it costs to try a certain type of case, and see their witnesses in action.
“As any trial lawyer knows, you can plan a case to a gnat’s eyelash but until you’ve seen that case at trial, you really don’t know that case,” he said.
“Shakespeare did the writing and the playing at the same time but most of us need to see the play in action to see whether it’s a really great play,” he said.
Plaintiffs’ attorney Pendley said parties should pick their bellwether cases carefully.
“You don’t necessarily want to put your very best case forward because it might give the wrong impression,” he said. “It won’t give you an accurate read on what the value of the cases are or the likelihood of success.”
Pendley said he also likes to have “an heir and a spare” like the British royalty, in case something happens to one of his bellwether plaintiffs.
He’s had plaintiffs pass away before trial. “I’ve also sat there to my horror and had the defendant ascertain that my client wasn’t entirely truthful and it brought down the entire case!” he said.
Something similar happened in the first bellwether trial over General Motor’s defective ignition switches (17 CLASS 123, 2/12/16).
Fallon said certain types of product liability cases, prescription drug suits in particular, are good candidates for bifurcated proceedings that handle complex liability questions separately.
The general causation issue of whether, for example, Vioxx increased the risk of heart problems, can be determined across all cases in phase one. The individual causation issue can be determined in phase two: whether Vioxx caused this plaintiff’s heart problems or whether they be attributed to the fact that he was mountain climbing or got shot in the heart that day, Fallon said.
The panelists spoke at an ABA symposium on class action litigation in America held in New Orleans in March.
To contact the reporter on this story: Perry Cooper in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Steven Patrick at email@example.com
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