Multidistrict Litigation & Choice of Federal Law

University of Chicago Legal Forum Volume 2023 Article 13 2024 Multidistrict Litigation & Choice of Federal Law Andrew Eller Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Eller, Andrew (2024) "Multidistrict Litigation & Choice of Federal Law," University of Chicago Legal Forum: Vol. 2023, Article 13. Available at: https://chicagounbound.uchicago.edu/uclf/vol2023/iss1/13 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact . Multidistrict Litigation & Choice of Federal Law Andrew Eller† ABSTRACT Multidistrict litigation (MDL) is a procedural mechanism that consolidates federal civil cases from around the country into one federal district for pre-trial proceedings. Congress enacted MDL by statute in 1968 in response to a substantial influx of cases, and MDL represents a large portion of the federal civil docket today. MDL creates tricky choice of law questions, however, because cases are often filed in one district and then transferred to another through consolidation. Should a judge handling an MDL apply the state and federal law that the original court would apply or should he apply the law of his own district? This Comment argues that the MDL court should apply the federal law of the original, transferor court because such a rule would protect plaintiff autonomy and limit inconsistencies once cases are remanded back to their original district for trial. I. INTRODUCTION Normally, in the course of civil litigation, there are certain procedural formalities and consistencies that parties can expect. This includes standards such as a proper and convenient forum as well as the application of a particular body of law. Not so in multidistrict litigation (MDL), where individual actions from around the country are consolidated into one district court in the name of efficiency only based on common questions of fact.1 In that MDL court, the district court judge rules on all dispositive motions during pretrial proceedings until the action is remanded for trial. A plaintiff suing over a defective medical device in Idaho could suddenly have their case transferred to Louisiana with little to no input from the plaintiff’s attorney, all because other plaintiffs around the country filed their own complaints related to the same medical device. † B.A., The University of Chicago, 2021; J.D. Candidate, The University of Chicago Law School, 2024. I would like to thank Professor William Hubbard, whose extensive wisdom in the world of civil procedure was essential in the development of this Comment. I would also like to thank all the editors on the Legal Forum for their tireless work on this and all our pieces. 1 28 U.S.C. § 1407(a) (1976). 341 342 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2023 Today, MDL is an important judicial efficiency mechanism consolidating thousands of actions that may otherwise overwhelm an already overburdened federal civil docket, but it also creates procedural inconsistencies and limits plaintiff autonomy.2 One such inconsistency is the choice of law applied in an MDL. Since individual actions in an MDL are often filed in one district and then transferred to another district for consolidation, the law to be applied can often be vastly different between the transferor court and the transferee court. This in turn has a substantial effect on the plaintiff’s ability to choose and predict what law will govern their action, given that they originally chose a different forum. A change in law can occur with both state and federal law, depending on the state and circuit of the district court when an action is transferred. Federal courts are left to grapple with which body of law to apply in these unique situations. When considering state law claims, it is well settled that the transferee MDL court must apply the state law of the original, transferor court.3 In this sense, the applicable law will not change after transfer—despite handling many consolidated cases in an MDL, the district court judge must still apply the state law of the original forum for each individual action. When it comes to issues of federal law, however, the current rule is that the circuit law of the transferee court will apply.4 This means that parties will face the law of the transferee MDL court’s circuit rather than the law of the original, transferor circuit during pretrial proceedings. The application of the transferee court’s federal law to transferred MDL cases creates a situation in which one circuit’s law applies during pretrial proceedings while another circuit’s law applies during and after trial, creating substantial confusion for parties. This Comment will first discuss the text and history of the MDL statute as well as the Supreme Court’s jurisprudence concerning MDL. Both say little about choice of law directly but provide important context for how Congress and the Court have set up and interpreted MDL. Then, this Comment will discuss the current choice of law doctrine for transfers, both in MDL and non-MDL contexts. While the Supreme Court has not addressed choice of law in MDL, it has addressed choice of law for permanent transfers, finding on multiple occasions that the law of the transferor court 2 Daniel S. Wittenberg, Multidistrict Litigation: Dominating the Federal Docket, ABA (Feb. 19, 2020), https://www.americanbar.org/groups/litigation/publications/litigation-news/businesslitigation/multidistrict-litigation-dominating-federal-docket/ [https://perma.cc/HNG9-5NAK]. 3 See In re Temporomandibular Joint (TMJ) Implants Products Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996). 4 See In re Kor. Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C. Cir. 1987). 341] MULTIDISTRICT LITIGATION & CHOICE OF FEDERAL LAW 343 applies, rather than that of the transferee court. The Court’s holdings here provide further insight on how the Court considers transfers generally. Lastly, this Comment will argue that MDL courts should apply the federal circuit law of the original, transferor court, and furthermore, that any appeals during pretrial proceedings should be appealed directly to the transferor court’s circuit. This rule would preserve the autonomy of plaintiffs to have their actions heard under the law of the jurisdiction they originally filed in, as well as allow circuits to review decisions based on their own interpretation of federal law. Before concluding, this Comment offers a brief case study applying these proposed rules. II. HISTORY AND PROCEDURE OF MDL MDL is a judicial efficiency mechanism that consolidates cases that contain one or more common question(s) of fact from federal district courts around the country into a MDL court.5 There is no precise qualitative or quantitative test for determining ho (...truncated)