MDL Coordination with State Courts

MDL Coordination with State Courts Judge Barbara Rothstein / USDC - DC Dawn Barrios / Barrios Kingsdorf & Casteix, L.L.P. Julie Callsen / Tucker Ellis LLP March 26, 2019 WHY STATE COURT VERSUS FEDERAL

COURT Lack of diversity Relinquishing control of your case Perception of black hole Assessment on cases in MDLs, classes, or mass actions in federal court WHY STATE COURT VERSUS FEDERAL

COURT Comparison of status of federal cases and state cases (to get to trial) MDLs take time to be assigned and get organized State cases may be more advanced and may be in discovery SHOULD THERE BE COORDINATION?

Coordination is favored (Manual for Complex Litigation, Fourth (2015) to minimize conflicts that distract from the primary goal of resolving the parties disputes, 20.313 to reduce the costs, delays, and duplication of effort that often stem from such dispersed litigation, 20.313 SHOULD THERE BE COORDINATION? Production of evidence and depositions only done once

CHALLENGES TO COORDINATION Different rules/standards Daubert/Frye Laws vary from state to state Difference in procedures Protective orders Sealing of records

STRATEGIES TO ACHIEVE COORDINATION Judges organize and coordinate with each other Special Master over all cases for certain issues (discovery, settlement) One electronically shared document depository MDL Website State Website

STRATEGIES TO ACHIEVE COORDINATION MDL and state court federal-state liaison counsel Joint pretrial motions and hearings Coordination of trial dates AUTHORITIES Manual for Complex Litigation (4th Ed.)

Manual for Cooperation Between State and Federal Courts, Federal Judicial Center, National Center for State Courts, State Justice Institute JPML Multijurisdiction Litigation https://multijurisdictionlitigation.wordpress.com/ James G. Apple, Paula L. Hannaford, & G. Thomas Munsterman, Manual for Cooperation Between State and Federal Courts (Federal Judicial Center, National Center for State Courts, and State Justice Institute, 1997)*^ Federal Judicial Center & National Center for State Courts, Coordinating Multijurisdiction Litigation: A Pocket Guide for Judges (2013)* Barbara J. Rothstein & Catherine R. Borden,

Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges (Federal Judicial Center & Judicial Panel on Multidistrict Litigation, 2011)^