What must defense counsel do to prepare for trial after a MDL court remands a case to the transferor court? How are issues not resolved in the Multidistrict Litigation preserved for trial following remand. Not a great deal has been written about the strategic trial issues that may arise post-remand. This may be because most cases transferred under 28 U.S.C. 1407 are resolved in the MDL and there is often little need to transfer back many cases at the completion of MDL proceedings. Indeed, the Judicial Panel on Multidistrict Litigation reported that, as of September 2013, only slightly more than six percent of civil actions had been remanded to their home districts for trial. Many mass tort products cases consolidated in a MDL result in global settlements before a remand occurs.
The Judicial Panel of Multidistrict assigned to the Hon. Joseph R. Goodwin in the Southern District of West Virginia seven MDLs concerning the use of transvaginal surgical mesh to treat pelvic organ prolapse (“POP”) and stress urinary incontinence (“SUI”). As of this past January, there were more than 60,000 cases pending, approximately 28,000 of which were in the MDL involving defendants Johnson & Johnson and Ethicon (collectively “Ethicon”) among others. In the MDL proceeding, Judge Goodwin used the MDL forum to streamline the issues prior to remand, including the hearing and resolution of critical Daubert issues and testing a sample of bellwether cases in trials. Unquestionably, Judge Goodwin’s exhaustive work in the MDL conserved the resources of both the parties and the court system as a whole. Nevertheless, Judge Goodwin recognized that critical expert testimony concerning the adequacy of Ethicon’s clinical testing and research, physician outreach or particular product development procedures and assessments could not be ruled on by the MDL Court because the rulings on these issues would vary depending upon which state’s product liability law applied.
When the case brought by Shirley Walker and Roosevelt Walker, Walker v. Ethicon, Inc. , 2017 U.S.Dist. LEXIS 112738 (ND IL June 22, 2017), was remanded to the federal district court for the Northern District of Illinois, Eastern Division, Ethicon’s lawyers renewed their Daubert motions before the Hon. Amy J. St. Eve. Applying Illinois law, Judge St. Eve granted Ethicon’s Daubert motion and excluded a great deal of the testimony of plaintiffs’ gynecologic surgery expert, Bobby Shull, M.D.
From my perspective, the take-away in Walker is that MDL counsel must evaluate which Daubert issues the MDL Court will likely address and which Daubert issues it may kick down the road for resolution by the transferor court. For an analysis of the state-specific rulings made by the Hon. Amy J. St. Eve concerning Dr. Shull, I refer you to a thoughtful article titled, “Plaintiff’s Expert’s Opinions Trimmed Post-Remand in Mesh Litigation“, (Drug & Device Law Blog, July 27, 2017) by Michelle Yeary, a partner at Dechert.