Alexandra D. Lahav, a law professor and editor of the Mass Tort Litigation Blog, has an interesting blog post on choice of law made by the MDL Panel in cases consolidated for discovery where the applicable law chosen may foretell the outcome of the case.
To receive certification by the MDL Panel, under Rule 23 you must have: (1) plaintiffs so numerous that joinder is impossible (numerosity); (2) class claims which present common questions of law or fact (commonality); (3) plaintiffs’ claims that are typical of those of the class (typicality); and (4) plaintiffs who are adequate representatives of the putative class (adequacy).
This blog post addresses the third prong, commonality of law. In some cases, like the Michigan law at issue in Warner-Lambert v. Kent, with different statutes of limitations, the issue can be a case breaker for the plaintiffs. In MDL cases now, the MDL Panel determines which law will be applied by selecting where to send the case – wherever the case is sent, that forum’s law applies. As Ms. Lahav’s post points out, the MDL Panel is placed in a terrible situation when the outcome of the case is based on transfer and is already known in advance of the transfer.
Ms. Lahav’s blog post, which she says will be the subject of an upcoming law review article, says the MDL panel should consider “transferring and centralizing the cases to several regional forums. I suggest two forums. Plaintiffs who filed within the regions covered by the preemption precedent would be consolidated in one court; plaintiffs who filed in the regions covered by the non-preemption precedent would be consolidated in another court. This would not lead to duplicative discovery because all the cases in region 1 would be dismissed, and all the cases in region 2 would proceed.”
I do not appreciate the nuances of the law involving the seven judge MDL Panel’s decision making process or the possible ramifications of Ms. Lahav’s remedy. While this decision might hurt some plaintiffs who might be able to backdoor otherwise barred claims, I have to admit is appears to be a reasonably fair solution in cases where the choice of law is dispositive of the claim.