Vol. 37, Number 11November 2005
Chair of Judicial Panel Sees Role as Gatekeeper
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Judge Wm. Terrell Hodges (M.D. Fla.) |
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Judge Wm. Terrell Hodges (M.D.
Fla.) has served as chair of the Judicial
Panel on Multidistrict Litigation since
December 1, 2000. He was chair of the
Executive Committee from October 1,
1996, to October 1, 1999, and a member
of the Committee beginning in 1994. He
was only the second district judge in the
history of the Conference to be appointed
chair of the Executive Committee. He
also served on a variety of other Conference
committees, including three years
as chair of the Advisory Committee on
Criminal Rules. Hodges was the recipient
of the 21st Annual Devitt Distinguished
Service to Justice Award.
Q: How many judges sit on the
Judicial Panel on Multidistrict
Litigation (JPML) and how are
the members chosen?
A: The multidistrict litigation
statute (28 U.S.C. § 1407)
provides that the Panel should consist
of seven members, circuit or district
judges, no two of whom may come
from the same circuit, so that some
geographic dispersion is provided.
The appointments are made by the
Chief Justice and the members serve
at his pleasure.
Several years ago, the late Chief
Justice Rehnquist revised his
approach to the panel and appointed
the present membership to staggered
and stated terms. Prior to that time,
the appointments had all been open-ended
and some members, usually
senior judges, had served for quite
a few years. Now the Panel consists
of active as well as senior judges and
the maximum term is a term of seven
years and then we rotate off.
Q: What is the process for
deciding which cases will
come to the Panel?
A: There are two principle ways.
A docket is created and cases
are initially considered for centralization
only on the motion of one of the
parties in one or more of the constituent
actions. Specifically, a party can
file a motion under the statute to
have a group of cases transferred to
a single judge in a given district for
pretrial management.
Then, if the Panel decides to grant
the motion and centralize the cases
in a transferee district, related cases
may later be filed, actions we refer to
as tag-along cases. If those cases are
deemed to be substantially similar to
the ones already pending and centralized
in the Multidistrict Litigation
docket, an order is entered transferring
those cases into the centralized
proceedings in the transferee court.
Under our present practice, we
normally conduct oral argument on
the motions for initial centralization—motions that would, if granted, result
in the creation of a new docket. Then afterward,
with respect to tag-along actions,
unless some unusual question is
presented, those are considered by the
Panel on the briefs and papers of the
parties and oral argument is not heard.
Of course, once a docket is created,
our rules provide that it is the duty of
counsel to bring the attention of the
Panel to any other cases that might
constitute tag-along actions. But the
initial process is triggered exclusively
by the motions of the parties.
The Panel has traditionally met
and sat to hear arguments and decide
matters that have come before it on the
last Thursday of every other month.
It's a full day's work, and its probably
a week's work in preparing for each
session.
Q: What are some of the advantages of centralizing a group
of cases before one judge?
A: Well, of course some parties
want centralization; some
don't. It depends on the individual
case. The statute itself is designed
to provide the benefit of centralized
management and a reduction in
duplicative discovery, for example,
or the waste of judicial resources
by having two or more judges in
different districts ruling on essentially
the same issues in the same
litigation. By centralization, then,
the discovery can be managed in
an orderly way by the transferee
judge. It also reduces the amount of
judicial time that's required by the
overall litigation—at least that's one
of the objectives. It also minimizes or
reduces the potential for inconsistent
adjudication on the same issue in
different districts, which can result
in considerable confusion in the litigation
and in the law itself.
Q: What kinds of cases is the
JPML currently handling?
A: From the Panel's inception,
our dockets have involved
those kinds of cases that tend to
produce mass litigation in different
districts, for example, pharmaceutical
claims. Presently, the high
profile example would be the Vioxx
cases that are being managed by Judge Eldon Fallon in New Orleans
as the transferee judge.
Patent cases frequently come
before the Panel because there will
be infringement actions pending in
two or more districts involving the
same patent.
Presently, we have a number of
active dockets involving sales practice
claims in the insurance industry.
Air crash disasters frequently
produce multiple claims in multiple
jurisdictions. Unfortunately, we
always have two or more of those
dockets pending. Securities and
ERISA cases that are generated by
corporate collapse on a large-scale
basis frequently come before the
Panel; we have a number of those.
Bear in mind that we don't
become involved, at all, in the merits
of the claims or disputes in multidistrict
litigation. We really are gatekeepers,
deciding whether certain
litigation should be let through the
gates, so to speak, and, if so, where
it should go. After that, it's entirely
within the prerogative of the transferee
judge to manage the litigation
and make all procedural and
substantive rulings the case might
require in a pretrial context.
Q: If the Panel declines to
centralize certain cases, can
the cases be considered again at a
later date?
A: Yes. As a matter of fact,
we did have that issue on a
recent docket. Some cases had been
filed two or three years ago, and at
the time there were only two cases
pending. Normally, if there's only a
small number of cases, two or three
in different districts, and it doesn't
appear that there are going to be any
more, and there are some differences
between those cases, we would probably
not centralize them. We had
done that in this case. But recently, a
number of other cases had been filed.
I think when we next considered
the matter, there were seven cases matter, there were seven cases
pending in various districts. So,
confronted with that circumstance,
we changed our minds and entered
an order centralizing the cases.
Q: When you vote to centralize
a number of cases, does it
have to unanimous?
A: No, the statute provides that
a vote of four members of
the Panel is required to take action.
However, we have a unique record
on the Panel. So long as I've served
on it, we have not yet encountered
any decision that wasn't determined
unanimously. We had one abstention
one time, but it was not a dissent. We
come to a consensus rather well on
the Panel.
Q: How does the JPML decide
which judge will handle a
centralized case?
A: There aren't any hard
and fast rules about that; it
depends on the circumstances of the
case. Normally, we would first look
to those judges who already have
pending before them one or more of
the constituent actions that would be
involved in the multidistrict docket.
If we see that there is a judge in a
given district who already has one
or more of these cases, or indeed
has more of them on his or her own
docket than other judges, that would
identify that judge as a probable
transferee judge, if he or she would
consent.
But we also consider such things
as the experience of the judge. We
wouldn't normally ask a brand-new
judge to take on a multidistrict
litigation. Not that they couldn't
handle it, but that it would be more
of an imposition probably on that
judge in preparing for the litigation
than it would on judges with
more experience. And we also look
at the workload of the district and
the transferee judge. If it's a heavily
burdened district, then the transfer
of a case there could impose an inordinate
burden on the clerk because
the handling of a multidistrict docket
does increase not only the work of
the court and the judge, but especially
the clerk. And we would look
at the judge's caseload. If it appears
that the judge already has a substantial
caseload, so that it would be an
imposition or a burden to ask him
or her to take on the extra work
involved, then we might look elsewhere.
Presently, we have something
over 185 district judges all over the
country acting as transferee judges,
handling multidistrict litigation. That
fact is little known. Those judges are
performing a service for which they
are entitled to substantial commendation
because they're not getting
an extra penny in pay. It's all volunteer
work, done out of a desire to be
of service and to have a professional
challenge, which this kind of litigation
brings.
Q: In 1998, the Supreme
Court held in Lexecon, Inc. v.
Milberg Weiss Bershad Hynes & Lerach,
that explicit statutory authority was
absent for judges, to whom a case
has been transferred by the Panel,
to retain it for trial or transfer it to
another district. How has Congress
responded to the Lexecon decision?
A: That's a timely question. The
House has passed H.R. 1038,
which would effectively over-rule
Lexecon by statutory amendment.
That is possible, of course, because
Lexecon involved a case of statutory
construction and not a constitutional
principle. The Supreme Court, itself,
in effect suggested that perhaps the
remedy for the result of the decision
would be an amendment to the statute.
I'm informed that the bill has
passed both the House and the
Senate at different times, but never in
a way in which it would become law.
The House has passed it again this time and it is about to be introduced,
I think, in the Senate. We're hopeful
that in this Congress the legislation
will pass and that Lexecon will be a
thing of the past.
It's hard to know how many multidistrict
dockets actually have been
affected in some substantial way
by the requirement of Lexecon that
constituent actions be remanded to
the transferor courts as soon as the
case is ready for trial. A number of
devices, frankly, have been utilized
by innovative judges since Lexecon
to minimize its effect. For example,
Judge Thomas W. Thrash Jr. in
Atlanta, is handling a multidistrict
docket for us. Some of the actions
have been transferred to him from
one of the districts in Texas. When the
cases were ready for trial, rather than
revisit that litigation on the judges in
Texas, he volunteered to go to Texas
through designation by the chief
judge of the circuit and the Chief
Justice to hold court there, and actually
try the case.
Q: Has your perception of the
JPML changed since you've
become chairman?
A: The way it worked out, I
was essentially appointed
as chairman of the Panel when I first
joined it. And I must say, while I
was—I thought—familiar with the
work of the Panel and the administration
of the statute and so forth, I
was very surprised by the volume of
work that the Panel does. Everyone
is familiar with the high-profile cases
such as Vioxx, which I mentioned,
or the asbestosis cases, or others
of similar scope. But the fact is
that every session, we will have a
very full calendar of new cases to
be considered.
We have space in the Thurgood
Marshall Building in Washington,
DC, and a staff of about 25
employees, including five attorneys.
It's a very substantial and
time-consuming operation administratively,
quite apart from the
judicial work of the members of
the Panel itself. Frankly, this was
something that caught me entirely
by surprise. And the work of the
Panel continues at the same, if
not even a greater level, now than
when I came on.
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