In Re: Wilson

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

5-15-2006

In Re: Wilson

Precedential or Non-Precedential: Precedential

Docket No. 05-4040

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-4040

IN RE: YUVONNE B. WILSON, et al.,

Petitioners

On Petition for a Writ of Mandamus

to the United States District Court

for the Eastern District of Pennsylvania

(Related to MDL-1203)

District Judge: Honorable Harvey Bartle, III

Argued December 13, 2005

Before: SLOVITER, SMITH and STAPLETON,

Circuit Judges.

(Filed May 15, 2006)

Sylvia Davidow

Fleming & Associates

Houston, TX 77056

Thomas C. Goldstein (Argued)

Goldstein & Howe

Washington, DC 20016

Jonathan S. Massey (Argued)

Bethesda, MD 20817

Attorneys for Petitioners Yuvonne B. Wilson, et al.

Robert D. Rosenbaum (Argued)

Arnold & Porter

Washington, DC 20004

Michael T. Scott

Paul B. Kerrigan

Milind M. Shah

Reed Smith

Philadelphia, PA 19103-7301

Peter L. Zimroth

Arnold & Porter

New York, NY 10022-4690

Attorneys for Respondent Wyeth Corp. f/k/a American

Home Products Corporation

Fred S. Longer

Arnold Levin

Michael D. Fishbein

Levin, Fishbein, Sedran & Berman

Philadelphia, PA l9l06

Attorneys for Respondents Plaintiffs’ Management

Committee and Plaintiffs’ Class Counsel

Wm. Terrell Hodges, John F. Keenan, Robert L. Miller, Jr., D.

Lowell Jensen, Kathryn H. Vratil, J. Frederick Motz and David

R. Hansen and Harvey Bartle, III,

Nominal Respondents

OPINION OF THE COURT

SLOVITER, Circuit Judge

The petitioners in this mandamus proceeding, all

represented by the same counsel, are several thousand of the

2

approximately 30,000 to 35,000 plaintiffs with suits currently

pending before the United States District Court for the Eastern

District of Pennsylvania (“the MDL Court”) as part of the

Multidistrict Diet Drug Product Liability Litigation, MDL-1203.

The Judicial Panel on Multidistrict Litigation (“JPML”)

transferred petitioners’ cases to the MDL Court for coordinated

or consolidated pretrial proceedings under 28 U.S.C. § 1407(a).

Petitioners contend that the generic or common discovery phase

has concluded in MDL-1203, and thus they moved the JPML to

remand their cases for case-specific discovery and trial in the

federal district courts from which they were transferred (“the

transferor courts”). The JPML refused to remand because it

determined that MDL-1203 continues to promote the just and

efficient conduct of proceedings in the diet-drug cases, and the

MDL Court itself had declined to suggest the remand of

petitioners’ cases. Petitioners argue that the JPML committed a

clear error of law because a remand was required under §

1407(a) once pretrial proceedings had concluded on issues

common to all cases. Petitioners ask, therefore, that we grant

mandamus and direct the JPML to return their cases to the

transferor courts for further proceedings.1

I.2

1

In a separate opinion filed today, we address an alternative

mandamus request by a subset of these same petitioners for a

remand of their cases to the state courts where most, if not all, of

them originated. See In re Briscoe, C.A. No. 04-4086. The

common thread between the petitioners before us and the

petitioners in In re Briscoe is that they are all represented by the

Houston, Texas, law firm of Fleming & Associates, LLP.

2

The extensive background to the MDL-1203 litigation need

not be set forth in full, and thus we limit our discussion to the facts

pertinent to this mandamus request. For additional background, see

In re Briscoe, C.A. No. 04-4086; In re Diet Drugs, 401 F.3d 143

(3d Cir. 2005); In re Diet Drugs, 385 F.3d 386 (3d Cir. 2004); In re

Diet Drugs, 369 F.3d 293 (3d Cir. 2004); In re Diet Drugs, 282

F.3d 220 (3d Cir. 2002).

3

On September 15, 1997, respondent Wyeth (then known

as American Home Products Corporation) withdrew from sale

on the United States market its widely prescribed appetite

suppressants, or “diet drugs,” which were sold under the trade

names of Pondimin and Redux. Approximately six million

people in the United States had taken one or both of the diet

drugs, which studies have linked to, inter alia, valvular heart

damage. After the diet drugs were withdrawn from the market,

thousands of lawsuits were filed against Wyeth in state and

federal courts nationwide.

In December 1997, the JPML created MDL-1203 and

transferred the pending federal cases to the MDL Court “for

coordinated or consolidated pretrial proceedings.” 28 U.S.C. §

1407(a). In early 1998, the MDL Court formed a Plaintiffs’

Management Committee to coordinate discovery and other

activities, and it appointed a Special Discovery Master under

Federal Rule of Civil Procedure 53. The MDL Court also

established numerous requirements for the conduct of discovery,

including deposition guidelines, a requirement that plaintiffs

complete a fact sheet regarding their individual claims, a list of

medical providers, and the submission of medical authorizations

to release patients’ records.3 The MDL Court created a

document depository through which discovery materials are

made available to transferor courts upon the remand of cases.

The MDL Court further established a system through which each

case transferred to MDL-1203 receives a Discovery Initiation

Date, which sets in motion a timetable for the completion of fact

and expert discovery. Significantly, the MDL Court from its

inception envisioned that the conduct of pretrial proceedings in

MDL-1203 would encompass fact and expert discovery that was

both generic (i.e., of widespread application to many cases) and

case-specific (i.e., that pertained solely to an individual

plaintiff’s claims).

3

On July 23, 2003, the MDL Court updated the initial

disclosure requirements, including the adoption of a revised fact

sheet and medical authorization form.

4

In April 1999, Wyeth and counsel for plaintiffs in the

then-pending state and federal court actions began global

settlement talks. In November 1999, after almost two years of

extensive liability discovery as part of the MDL-1203

proceedings, the parties reached a tentative Nationwide Class

Action Settlement Agreement (“Settlement Agreement”). The

proposed class of plaintiffs included all persons in the United

States, including their representatives and dependents, who had

ingested either or both of the diet drugs. The MDL Court held a

hearing on fairness, and on August 28, 2000, it certified the class

and approved the Settlement Agreement (with four

amendments).

Under the settlement terms, Wyeth agreed to pay up to

$3.75 billion to fund benefits to class members, who agreed in

return to release Wyeth from all claims (with one exception not

relevant here) arising out of their ingestion of the diet drugs.

The Settlement Agreement was also devised to afford medically

eligible class members the chance to opt out of its terms at

various points in the future to pursue the alternative of filing suit

against Wyeth for compensatory damages. Putative class

members were entitled to opt out from participation in the

Settlement Agreement by March 30, 2000, and thereby forego all

benefits and restrictions conferred under the Settlement

Agreement by excusing themselves from class membership.

Diet-drug users who did not exercise this initial opt-out right

became class members but were afforded subsequent

opportunities, if medically eligible under criteria specified by the

terms of the Settlement Agreement, to exercise a so-called

“downstream” opt-out right.4 In re Diet Drugs 369 F.3d 293,

299 (3d Cir. 2004). Class members who choose to opt out

4

The downstream opt out could be exercised at

“intermediate” or “back-end” stages. The petitioners before us

have not specified whether they are intermediate or back-end opt-

outs, but their counsel note that there is no legal distinction

between the two categories for purposes of this mandamus

proceeding. We thus refer to petitioners generically as

“downstream” opt-outs.

5

downstream receive no compensation under the Settlement

Agreement but are permitted to file suit against Wyeth and

others with certain restrictions, the most prominent of which is a

bar against seeking an award of punitive damages. In return for

the limitation on available damages, Wyeth agreed not to assert,

inter alia, a statute of limitations defense to the actions.

The thousands of downstream opt-out petitioners

presently before us filed suit against Wyeth and other

defendants. Some petitioners filed suit individually, although

many had joined in multi-plaintiff complaints. It appears that

all, or almost all, of the petitioners originally filed their actions

in state courts between 2002 and 2004. Wyeth removed the suits

to federal court. The JPML then transferred the cases, the

majority of which had been docketed in the federal district courts

in Texas, to MDL-1203. The rest of petitioners’ suits were

transferred from federal district courts in twenty different states.

Before petitioners’ cases arrived in MDL-1203, the MDL

Court initiated a program for suggesting the remand of actions

that had completed coordinated pretrial proceedings.5 In May

2001, the MDL Court entered Pretrial Order (“PTO”) No. 1962

in which it noted that many of the then-pending cases had

completed discovery on the issues amenable to resolution in

MDL-1203. The MDL Court promptly suggested approximately

thirty-eight cases for remand.

5

After a case completes the pretrial process in an MDL

proceeding, it is remanded to the transferor district court for any

remaining proceedings and trial. 28 U.S.C. § 1407(a). The MDL

court has no authority to remand a case on its own; rather, the

JPML must order the remand. In re Roberts, 178 F.3d 181, 184 (3d

Cir. 1999). The transferee court nevertheless plays a vital role in

the remand process by entering an order in which it suggests to the

JPML that a case is ready for remand. “A suggestion to remand

from the [MDL] court provides the indication that the coordinated

or consolidated pretrial proceedings assigned to it by the [JPML]

have been successfully completed.” 17 James Wm. Moore et al.,

Moore’s Federal Practice ¶ 112.07[3][a] (3d ed. 2005).

6

Since May 2001, the number of plaintiffs with cases

pending in MDL-1203 has increased dramatically – from some

3,000 in 2001 to approximately 30,000 to 35,000 as of January

2006. This growth in the MDL-1203 docket appears to have

stemmed largely from the structure of the Settlement Agreement

itself, which allows class members to opt out “downstream.”

Class members were required to exercise an intermediate opt-out

right by May 3, 2003. Prior to that time, the cases in MDL-1203

were brought mainly by putative class members who had opted

out at the initial, pre-class certification stage. After approval of

the Settlement Agreement, tens of thousands of diet-drug users

exercised downstream opt-out rights and filed suit against

Wyeth.6 Wyeth subsequently removed a substantial number of

those suits from state to federal court.7 The JPML transferred

the cases for inclusion in MDL-1203, which explains the

increased caseload. Moreover, many of the cases came to MDL-

1203 as multi-plaintiff actions. In March 2004, as part of an

effort to facilitate the administration of its docket and to resolve

misjoinder issues, the MDL Court ordered the severance of all

multi-plaintiff suits and directed each plaintiff to file a Severed

and Amended Complaint.8 Consequently, numerous multi-

plaintiff actions are now proceeding as individual suits, a fact

reflected in the substantial number of pending cases.

Petitioners contend that the increased caseload has

rendered the MDL Court unable to continue with its 2001

program of suggesting remand for cases that have completed

common discovery. They argue that there is only “plaintiff-

6

Petitioners have estimated that “some 60,000 to 70,000

class members” opted out of the Settlement Agreement to pursue

litigation against Wyeth.

7

Petitioners contend that the removals were improper, an

issue raised in the companion case of In re Briscoe, C.A. No. 04-

4086.

8

Notably, the MDL court’s severance of the actions is

without prejudice to any party’s right to request consolidation of

the severed actions upon remand to the transferor court for trial.

7

specific” discovery to be completed in numerous pending suits,

like their own. Petitioners claim that MDL-1203 has become an

inefficient vehicle for managing the diet-drug cases. Moreover,

they argue that their suits must now be remanded to the

transferor courts as a matter of law because generic liability

discovery has been completed.

In May 2003, petitioners filed a motion with both the

JPML and the MDL Court seeking to dissolve MDL-1203 and

asking for a remand of all pending cases to the transferor courts,

including cases in which Fleming & Associates, LLP (“the

Fleming firm”) was not counsel.9 On August 25, 2003, the MDL

Court rejected the motion, which it treated as a request for a

suggestion of remand. The Court noted that while generic

liability discovery had ended, pretrial proceedings on common

factual questions had yet to be completed. The MDL Court

observed that proceedings were ongoing in most, if not all, cases

pending in MDL-1203, and the MDL Court had recently

streamlined its discovery process. Furthermore, the nature of the

ongoing discovery was generally similar from case to case,

thereby making MDL-1203 effective in providing consistency

and reducing duplication of effort and expense.

The Court added that remand, or dissolution of MDL-

1203, would be premature because issues common to all pending

cases continually arise. The Court twice had enjoined

downstream opt-out plaintiffs from pursuing punitive damages

against Wyeth in violation of the Settlement Agreement. If

punitive damages were awarded in downstream cases, Wyeth’s

financial viability could be jeopardized, leaving many diet-drug

plaintiffs unable to recover compensation for their injuries. The

MDL Court found it critical that it continue to supervise the

active MDL-1203 cases to ensure a unified interpretation of the

Settlement Agreement and a consistent enforcement of its terms.

The Court also anticipated that issues related to the eligibility of

9

Counsel for additional petitioners also filed remand

motions with the MDL court, but those petitioners are not parties

to this mandamus proceeding.

8

class members to opt out would arise, the resolution of which

requires a uniform and consistent application of detailed medical

criteria. Finally, the MDL court noted that it had faced common

patterns in allegations that plaintiffs had fraudulently joined

defendants to defeat federal jurisdiction, raising issues that touch

upon many cases. Thus, the Court declined to suggest either

dissolution of MDL-1203 or a remand of its pending cases.

On October 30, 2003, the JPML also rejected petitioners’

motion, noting that the Plaintiffs’ Management Committee,

among others, was opposed to petitioners’ request for a remand.

The JPML found that centralization continued to serve the

convenience of parties and witnesses and to promote the just and

efficient conduct of the litigation. It observed that the MDL

Court remains in the best position to set the future course for the

diet-drug cases. Because the MDL Court had declined to

suggest a remand, the JPML was unconvinced that it should

compel one.

According to petitioners, they then waited eighteen

months with the expectation that their cases would be suggested

for remand. In November 2004, petitioners sought another

suggestion of remand, again arguing that case-specific discovery

was all that remained and that retention of their cases was no

longer justified. Petitioners stated that “[w]ith the exception of

perhaps cardiology experts, every witness left to depose, every

document left to produce and every medical record left to review

are all located in Plaintiffs’ home states, not in Philadelphia,

Pennsylvania.” App. at 268. Unlike in their prior motion,

petitioners did not request a dissolution of MDL-1203, and they

sought a suggestion of remand in their own cases, not all

pending cases.

On January 27, 2005, the MDL Court declined to suggest

a remand, concluding that petitioners’ request was “without

substance” and premature. App. at 284. The Court explained

that it promptly enters a suggestion of remand when a case is

ready for return to a transferor court, and that it would continue

9

to follow that practice.10

On March 30, 2005, Petitioners filed another motion for

remand with the JPML. They argued, inter alia, that the MDL

court’s remand program was at a “virtual standstill,” as

evidenced by its suggestion of remand in “fewer than 100 cases”

since 2001.11 App. at 369-70.

On June 20, 2005, the JPML denied the remand motion.

It again found that a remand would be inappropriate because

centralization continues to promote the just and efficient conduct

of the litigation. The JPML added that the MDL Court had

“recently overseen the institution of a new settlement process in

the MDL-1203 proceedings.” 12 App. at 2. Absent a suggestion

10

The MDL court’s docket reflects that it issued twenty-five

separate orders between May 2001 and August 2005 in which it

suggested remands.

11

Petitioners’ counsel clarified at argument before this court

that the MDL Court has remanded “about 150" cases. Oral Arg.

Tr. at 81. For its part, Wyeth contends that the relatively low

number of cases remanded is due to the fact that the parties “had

settled virtually all of the cases in MDL-1203 prior to any such

remand.” Respondent’s Br. at 11.

12

Wyeth describes this “new settlement process” as follows:

On January 18, 2005, Wyeth and counsel representing a

number of plaintiffs with cases in MDL 1203 advised [the

MDL court] that those parties had developed a proposed

process by which large numbers of cases might be

negotiated and settled. The process provides a methodology

for valuing some categories of claims and provides a

structure for individualized negotiations between Wyeth and

lawyers representing diet drug claimants. Pursuant to that

motion, [the MDL court] entered PTO 4389, establishing a

process by which participating law firms and Wyeth could

obtain automatic stays of all proceedings in their cases by

notifying the Special Master that those plaintiffs represented

10

of remand from the MDL Court, the JPML found no persuasive

reason to order one, and it urged petitioners to continue to avail

themselves of the efficiencies provided by inclusion in MDL-

1203.

Petitioners have turned to this court with the filing of

their petition for a writ of mandamus.

II.

The All Writs Act provides that “[t]he Supreme Court and

all courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of law.” 28 U.S.C. §

1651(a). The Supreme Court has identified “three conditions”

by participating law firms had agreed with Wyeth to

participate in that settlement process. . . . [A]lmost all the

plaintiffs with cases pending in MDL 1203 have entered

into such stipulations and are in various stages of settlement

negotiations.

On September 2, 2005, [the Fleming firm] and Wyeth

entered into such a stipulation, which was filed with the

Court, advising it that [the Fleming firm] had agreed to

participate in settlement negotiations on behalf of all

Petitioners [to the present mandamus proceeding]. . . .

Accordingly, all of the Petitioners’ cases are stayed while

settlement discussions continue.

Respondent’s Brief at 8-9.

According to counsel for petitioners, the settlement

discussions with Wyeth concluded in December 2005. The

standstill agreement for petitioners’ cases expired on January 1,

2006, and discovery recommenced on February 1, 2006. Notably,

counsel for Wyeth estimated that “about 11,000" MDL-1203 cases

were settled as part of the new settlement process. Oral Arg. Tr. at

66.

11

that a petitioner must meet before a reviewing court may issue a

writ of mandamus: the petitioner must establish both that (1)

there is “no other adequate means” to attain the relief sought and

(2) a right to the writ that is “clear and indisputable”; and (3)

even if the first two conditions are met, the reviewing court in its

discretion must conclude that the writ “is appropriate under the

circumstances.” Cheney v. U.S. Dist. Court for Dist. of

Columbia, 542 U.S. 367, 380-81 (2004) (citations omitted).

Petitioners have satisfied the first condition to mandamus

in that they have no other adequate means to attain relief from

the JPML’s order refusing to remand their cases. Mandamus is

the sole means through which petitioners can seek review of the

JPML’s order. See 28 U.S.C. § 1407(e) (“No proceedings for

review of the panel may be permitted except by extraordinary

writ pursuant to the provisions of [§ 1651].”). This court is the

proper venue for the mandamus petition. See id. (“Petitions for

an extraordinary writ to review an order to transfer or orders

subsequent to transfer shall be filed only in the court of appeals

having jurisdiction over the transferee district.”).

We have observed that because of the “great weight” that

the JPML places upon an MDL court’s suggestion of remand,

“only those plaintiffs who actually sought suggestion of remand

from the [MDL] court have satisfied the first prong of the

mandamus inquiry.” In re Patenaude, 210 F.3d 135, 142 (3d Cir.

2000). Here, the parties do not dispute that all of the petitioners

joined in the second request that the Fleming firm filed in the

MDL court for a suggestion of remand. The MDL court denied

that request on the merits. Petitioners have thus met the first

condition to mandamus. We focus, then, on whether they have a

clear and indisputable right to a remand of their cases.

III.

The second condition to mandamus requires a showing

that the court under review “committed a clear error of law at

least approaching the magnitude of an unauthorized exercise of

judicial power, or a failure to use that power when there is a duty

to do so.” In re Federal-Mogul Global, Inc., 300 F.3d 368, 384

12

(3d Cir. 2002) (quotation marks and citation omitted). In

addition, “mandamus can apply to discretionary acts where

petitioners can demonstrate a ‘clear abuse of discretion.’”

Patenaude, 210 F.3d at 141 (quoting Mallard v. U.S. Dist. Court,

490 U.S. 296, 309 (1989)).

In arguing that the JPML committed a clear error of law

by failing to order a remand, petitioners rely upon the language

of § 1407(a), which provides:

When civil actions involving one or more common

questions of fact are pending in different districts, such

actions may be transferred to any district for coordinated

or consolidated pretrial proceedings. Such transfers shall

be made by the judicial panel on multidistrict litigation

authorized by this section upon its determination that

transfers for such proceedings will be for the convenience

of parties and witnesses and will promote the just and

efficient conduct of such actions. Each action so

transferred shall be remanded by the panel at or before the

conclusion of such pretrial proceedings to the district

from which it was transferred unless it shall have been

previously terminated: Provided, however, That the panel

may separate any claim, cross-claim, counter-claim, or

third-party claim and remand any of such claims before

the remainder of the action is remanded.

28 U.S.C. § 1407(a) (emphasis added).

Petitioners contend that the JPML failed to comply with §

1407(a) by refusing a remand at what they claim was the

conclusion of “coordinated or consolidated pretrial

proceedings” in MDL-1203. Mandamus Ptn. at 12.

Significantly, petitioners do not appear to dispute that the

ongoing MDL-1203 proceedings qualify as “pretrial” in nature,

as those proceedings have primarily involved discovery in

individual cases and the recent settlement process. See

Patenaude, 210 F.3d at 144 (discussing the meaning of “pretrial”

under § 1407(a) and holding settlement conferences are pretrial

proceedings). Rather, petitioners’ challenge is directed to

13

whether the proceedings can be considered “coordinated or

consolidated” in light of the fact that generic liability discovery

concluded years ago. Petitioners argue that the recent settlement

process lacked judicial oversight, and that MDL treatment is

unnecessary when remaining discovery is case specific. They

contend that the MDL process only serves to delay the resolution

of their cases.

Although petitioners argue that our decision in Patenaude

supports their position, that case clearly cuts the other way. In

Patenaude, plaintiffs with injuries allegedly suffered from

asbestos exposure had their actions transferred to a multidistrict

litigation, where the cases remained for several years as part of a

pretrial process that did not involve global discovery. 210 F.3d

at 138-39. The discovery in Patenaude related to a pending class

action, individual or groups of claims, and to “litigation

screening companies, the physicians they employ, and the nature

of their contracts with plaintiffs’ firms.” Id. at 139. In addition,

the MDL judge was actively engaged in the process of seeking

to settle pending cases. Id. at 139-40. A group of plaintiffs

sought mandamus to compel a remand of their cases to the

transferor courts, arguing that “coordinated or consolidated”

under § 1407(a) should be interpreted to mean that pretrial

proceedings are at an end when an MDL court “ceases to

conduct proceedings common to all.” Id. at 143-44.

Looking to the guidance provided by the Supreme Court’s

decision in Lexecon, Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26 (1998), this court rejected the petitioners’

narrow reading of the statutory language, concluding instead that

the phrase “‘coordinated or consolidated’ is to be interpreted

broadly.” Id. at 142 (citing Lexecon, 523 U.S. at 33-34).

Indeed, we observed that “a proceeding that relates only to a

single individual’s case or claim can nonetheless be

coordinated,” as coordination can be found even if common

issues are present only in relation to cases that have already

terminated. 210 F.3d at 143. Moreover, “[t]o be coordinated, it

is not necessary that common issues are being

contemporaneously addressed” or that “any one issue be

common to all cases, so long as issues ‘overlap.’” Id. at 143

14

(citing Lexecon, 523 U.S. at 34). Applying these principles, we

denied the mandamus petition in Patenaude because, inter alia,

overlapping issues “ha[ve] been considered”: the

transferee court oversaw the initial attempts at global

settlement and set forth procedures applicable to all

regarding the mandatory exchange of information, the

[settlement] negotiation process, and the prioritizing of

cases. Moreover, the transferee court continues to

conduct discovery regarding the use of litigation

screenings that overlaps many of the cases in MDL-875.

Although there is no allegation that litigation screenings

were conducted in any of the plaintiffs’ individual cases,

this issue is common to many cases from many different

transferor districts.

210 F.3d at 144 (citations omitted). We held that “because

individual settlement negotiations and conferences are ongoing

in the plaintiffs’ individual cases, and because the transferee

court is conducting discovery on overlapping issues that affect

many asbestos cases, even if not the plaintiffs’, coordinated

pretrial proceedings have not concluded[.]” Id. at 146.

Petitioners here likewise seek to equate the completion of

common discovery with the end of “coordinated or

consolidated” proceedings. As we made clear in Patenaude, the

test is not whether proceedings on issues common to all cases

have concluded; it is whether the issues overlap, either with

MDL cases that have already concluded or those currently

pending. Moreover, the overlapping issues do not necessarily

need to touch the petitioners’ particular cases. Under this

standard, we find adequate evidence that the proceedings in

MDL-1203 qualify as “coordinated or consolidated.”

Just prior to the filing of petitioners’ second request for a

remand with the JPML, the MDL Court established a process for

plaintiffs to seek an automatic stay in order to pursue settlement

negotiations with Wyeth. Within days after commencing this

mandamus proceeding, petitioners themselves committed to the

process and stipulated to a stay of their cases. Given its

15

familiarity with the diet-drug litigation, the MDL court was, as

the JPML concluded, best positioned to aid the discussions

between the plaintiffs and Wyeth. While the Fleming firm

apparently did not settle the cases of any of the petitioners before

us, Wyeth has estimated that “about 11,000” cases were settled

as a result of the process. Oral Arg. Tr. at 66.

Petitioners argue that no court-managed negotiations took

place, a fact that they view as pertinent in distinguishing the

MDL-1203 process from Patenaude. Petitioners note that “all

settlement negotiations [we]re private discussions, involving

discrete groups of claimants represented by separate law firms,

and not overseen by the MDL court.” Mandamus Ptn. at 18. In

Patenaude, the MDL judge was actively involved in prioritizing

the cases on its docket and in directing the parties into a process

for the discussion of settlement, with a focus on addressing the

claims of the most seriously ill plaintiffs first. 210 F.3d at 140.

The court established procedures for the exchange of

information and the negotiation of settlements, and if the

settlement process failed, the court considered whether

immediate remand to the transferor court was appropriate. Id.

The court’s active management of the settlement process

resulted “in numerous cases being resolved” as well as the

remand of a substantial number of cases to the transferor courts.

Id.

Petitioners are correct that the MDL Court here played a

far less active role in the settlement process than was the case in

Patenaude. Nevertheless, our determination in Patenaude that §

1407(a) was satisfied did not hinge on the MDL judge having

engaged in centralized management of the negotiations. Rather,

we held that the phase “coordinated and consolidated” was broad

enough to include the conduct of individual, non-global

settlement negotiations, which in Patenaude happened to be

conducted under the close supervision of the MDL judge.

Here, in addition to granting automatic stays, the MDL

Court authorized the Special Master to schedule status

conferences involving Wyeth, counsel for the plaintiffs, and

members of the Claims Facilitating Committee so that it could

16

remain updated on the settlement process. Because of its

familiarity with the diet-drug litigation, the MDL court (or its

Special Master) was in a better position than any transferor court

to facilitate discussions between the plaintiffs and Wyeth should

the need have arisen. We recognized in Patenaude that a remand

may be refused “where the possibility exists that even individual

settlement negotiations will be more efficient if facilitated by a

judge who is intimately familiar with the general issues and

many of the parties.” 210 F.3d at 145. In short, the settlement

process – inasmuch as it was facilitated by the Court’s

willingness to stay proceedings in the MDL-1203 cases; likely

came about because of the existence of MDL-1203; involved

numerous plaintiffs; and was highly successful in resolving cases

– was a “coordinated” proceeding under § 1407(a).

Petitioners also argue that the discovery proceedings in

MDL-1203 are insufficient to satisfy § 1407(a). The record

reflects otherwise. The MDL Court has established a

comprehensive discovery schedule, which includes a procedure

for the conduct of fact and expert depositions for witnesses who

are expected to testify in more than twenty-five cases. The

Special Master has assigned each Severed and Amended

Complaint a Discovery Initiation Date (“DID”) and set deadlines

for the completion of discovery in those cases.13 As of

September 2005, DIDs were set in approximately 6,700 cases

with plaintiffs represented by the Fleming firm. Some 1,200 of

those cases had a DID of December 1, 2004, or earlier, meaning

they were scheduled for the completion of discovery no later

than November 1, 2005. Approximately 4,400 of the cases had

DIDs of August 1, 2005.

Moreover, the substantive issues in discovery overlap.

The Fleming firm designated one medical expert, Dr. Gerard

Polukoff, in more than 350 of its cases. Several other medical

13

Plaintiffs who have been diagnosed with a serious medical

condition (including Primary Pulmonary Hypertension and valvular

heart disease of sufficient severity) are eligible to be considered on

an expedited basis for remand.

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experts are designated in multiple cases. In addition, after

plaintiffs argued that Wyeth should be required to pay the

Fleming firm’s experts for time spent reviewing medical records

prior to depositions, the Special Master issued a single ruling

that resolved this issue and was applicable to all pending

Fleming cases.

Wyeth also contends (and petitioners do not dispute) that

“large numbers of plaintiffs [were] diagnosed with valvular heart

disease in mass echocardiogram screening operations organized

by plaintiffs’ counsel law firms. The manner in which those

screening operations were conducted involves common issues

among all the plaintiffs screened in the same echocardiogram

operation.” Respondent’s Br. at 12. Discovery on this issue is

akin to the proceedings in Patenaude regarding the plaintiffs’ use

of litigation screening companies. See Patenaude, 210 F.3d at

139. Indeed, Wyeth notes that depositions of the physicians who

were involved in the mass echocardiogram screenings involve

witnesses “who read hundreds or even thousands of

echocardiograms and accordingly may give testimony relevant to

large numbers of MDL cases.” 14 Respondent’s Br. at 15.

Finally, the MDL court observed that issues common to many

cases continue to arise, such as questions of enforcement and the

eligibility of class members to opt out. The latter issue requires

making an assessment of the medical requirements specified

under the terms of the Settlement Agreement to ensure that the

opt out is proper.

On this record, petitioners cannot meaningfully

distinguish the discovery proceedings in MDL-1203 from the

proceedings we deemed coordinated in Patenaude. Moreover,

petitioners have failed to show that MDL-1203 no longer serves

its purpose of promoting the just and efficient conduct of

14

When asked at the oral argument to identify remaining

overlapping issues, Wyeth responded that “we have had massive

fraud on the part of plaintiffs. We have had massive instances of

diagnoses based on improperly taken echocardiograms.” Oral Arg.

Tr. at 62. We, of course, express no opinion on this issue.

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litigation concerning the diet drugs.

In Lexecon, the Supreme Court made it clear that §

1407(a) “obligates” the JPML to remand “when, at the latest,

th[e coordinated or consolidated] pretrial proceedings have run

their course.” 523 U.S. at 34-35. The JPML’s obligation to

remand at that time is “impervious to judicial discretion.” Id. at

35. However, when, as here, a remand is sought before the

conclusion of coordinated or consolidated pretrial proceedings,

the JPML’s authority is discretionary. As we stated in

Patenaude,

Section 1407 expressly allows for remand “at or before

the conclusion of . . . pretrial proceedings.” Clearly, the

[JPML] has the discretion to remand a case when

everything that remains to be done is case-specific. This

does not mean that consolidated proceedings have

concluded at the point that only case-specific proceedings

remain; rather, the court can at that point exercise its

discretion to remand “before the conclusion of pretrial

proceedings.”

210 F.3d at 145 (quoting § 1407(a)). The JPML retains

“unusually broad discretion” to carry out its functions, including

“substantial authority . . . to decide how the cases under its

jurisdiction should be coordinated.” In re Collins, 233 F.3d 809,

811-12 (3d Cir. 2000).

Although petitioners argue in the alternative that it was a

clear abuse of discretion for the JPML to refuse a remand, we

are satisfied that the JPML acted within its authority, particularly

given the absence of any suggestion from the MDL Court that a

remand of petitioners’ cases would be appropriate. “[T]he

presence or absence of a remand recommendation from the

transferee judge as a factor in the [JPML]’s decision-making

process seems entirely reasonable.” Patenaude, 210 F.3d at 146.

It is true, as petitioners note, that almost five years have

passed since the MDL court entered its first order suggesting a

remand of MDL-1203 cases. But we see no evidence that

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petitioners’ cases have languished impermissibly on the MDL

Court’s docket. Moreover, petitioners’ cases were transferred to

MDL-1203 after they exercised a downstream opt-out right, and

their suits have not been pending for the entire five-year period.

In any event, the current state of the MDL-1203 proceedings

square with the requirements of § 1407(a). Like the JPML, we

urge petitioners to continue to avail themselves of the

efficiencies provided by inclusion in MDL-1203.

IV.

All parties recognize that these cases must eventually be

returned to their transferor courts and the only issue is when.

We recognize the petitioners’ frustration in the MDL court’s

reluctance to suggest remand at this time. We will of course

continue to monitor the status as cases continue to raise the

issues, but we believe the standards of mandamus continue to

limit our ability and inclination to decide otherwise at this time.

We have considered petitioners’ remaining arguments but

conclude that they are without merit and in need of no separate

discussion. Because petitioners have not shown a clear and

indisputable right to relief, we will deny their mandamus

petition.

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