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Indiana has received 14 multidistrict litigation actions over four decades

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It began with a mid-air plane collision over Shelby County in 1969. That deadly aviation action symbolized Indiana’s introduction to multidistrict litigation.

That crash that killed 83 people – the state’s most deadly plane collision – set the stage for how complex litigation involving multiple parties in varying locations would be handled in federal courts in Indiana. Only an additional dozen or so have come onto the state’s docket in the past four decades. Indiana hasn’t broken any records with its caseload or case type, but MDLs here have included everything from train derailments, COBRA tax shelters, fiber optic cable line being installed along railroad right of ways, tire recalls, and FedEx delivery driver claims of wage discrimination.

“The system is crucial for the efficient handling of large litigation, particularly class action litigation that’s filed in various locations,” said Ed Harris, a partner at Taft Stettinius & Hollister in Indianapolis who has been handling this type of litigation since the 1970s.

“Indiana has not been particularly different than it has been around the rest of the country, and it’s probably been used more and more as time has gone on, as plaintiff counsel have gotten more sophisticated about how it can be used,” Harris said. “But I’ve not really studied this point. Without consolidation, it would be a very chaotic situation with various courts handling what is essentially the same case very differently.”

A Bird’s Eye View

Since Congress created the 28 U.S.C. 1407 process in 1968 to relieve federal court backlog and streamline the pretrial proceedings of similar cases into one action, the Judicial Panel on MDL reports that nearly 350,000 actions had been subjected to that law through Sept. 30, 2010, more than 223,000 actions had been transferred into centralized courts.

During the 1970s and 1980s, the panel ruled annually on roughly 30 to 50 motions for centralization and that has more than doubled since then, particularly in the past decade where more than 100 motions have been filed. In total, 18 percent of the federal courts’ docket is MDL, figures show.

The 7th Circuit has seen about 4,000 actions transferred into its courts through the years, with the Southern District of Indiana receiving 1,070 cases and the Northern District of Indiana receiving 73. As in most jurisdictions, the Indiana courts saw significantly more cases transferred outside the state.

“We don’t have as many here as you might think, with Lilly and those pharmaceutical (companies) that might want it here because it’s more central and more witnesses are here,” said U.S. Judge Robert Miller in the Northern District of Indiana, who is one of only two Hoosier judges who’ve sat on the MDL panel that overviews and assigns litigation. “We try to sprinkle most of them across the dockets to locations where there’s already a constituent case on the docket, so this would add incrementally to what the judge already has.”

Financial cases in the past few years involving hedge funds and Ponzi schemes tend to drift toward the Southern District of New York where Wall Street is located, while the software and computer cases frequently get centralized in the Northern District of California that includes Silicon Valley, Judge Miller said. Those two districts make up about 25 percent of the MDL caseload, while the rest are just scattered nationwide, he said.

Some of that may be tied to the Southern District of Indiana’s having one of the highest caseloads in the country, keeping the amount of mass tort litigation lower in this state, he said.

Ten Indiana District judges through the years have had their hands touch MDL actions, including Judges John Tinder and David Hamilton from the Southern District who’ve since been elevated to the 7th Circuit. Judge Tinder handled an orthopaedic implant device antitrust action that included four cases through 2008, while Judge Hamilton still presides over the AT&T Corp. fiber-optic cable installation litigation that has involved 43 cases, with 10 remaining pending as of November.

The late U.S. Judge Cale Holder in the Southern District handled the first-ever MDL that followed the 1969 airplane collision near Fairland. A total 126 cases were part of that litigation, with 68 transferred into Indiana and 58 transferred out before it was terminated in 1972.

Largest and ongoing

Most significantly, the largest MDL action in Indiana has been the Bridgestone Firestone tire recall litigation, which came before Judge Sarah Evans Barker about a decade ago. It arose out of allegations that a design defect in Ford Explorer tires caused the treads to separate prematurely and lead to vehicle rollovers. Plaintiffs came from all over the U.S. and foreign countries and culminated in about 850 cases to date. Three cases remain ongoing before Judge Barker, according to national statistics and the local court clerk’s office.
 

Firestone sign on Delaware Street The largest multidistrict litigation action in Indiana has involved the Bridgestone/Firestone tire recall. A few remain ongoing in the Southern District of Indiana. (IL Photo/ Perry Reichanadter)

When assigned the task of presiding over the Bridgestone/Firestone litigation, Judge Barker served notice at the outset that things were going to move forward as quickly as possible in the complex case. When assigned the MDL, she brought in U.S. Magistrate Judge V. Sue Shields, who has since retired but handled much of the discovery aspects and settlements at the time.

Second in size of those MDLs pending is one before Judge Miller in the Northern District. In Re FedEx Ground Package System, Inc Employment Practices Litigation, MDL 1700, No. 3:05-MD-527 is a series of about 72 cases filed by drivers in multiple states including Indiana disputing how the delivery company classified them as “independent contractors” and contended they were due back pay and benefits that employees receive.

Though the first individual FedEx cases addressing these issues began surfacing in 2001, the line of litigation obtained MDL centralization in 2005 and Judge Miller has been ruling on various nuances involved through the years. He largely granted class certification to many of the cases in March 2008, and some of the more significant happenings since then have occurred in the past year.

Judge Miller ruled in December in favor of FedEx, finding that the drivers are independent contractors in 20 of the 28 remaining group lawsuits and ruling in FedEx’s favor on some claims in the other eight class-action cases. Many drivers have since appealed to the 7th Circuit where the litigation remains pending.

Judge Miller wrote in his ruling that the “nationwide character” of this litigation makes it a truly unique set of cases, unlike anything that has appeared before him or in the cases cited by the parties.

This was Judge Miller’s first MDL. Judge Miller said he got the case because of his service on the MDL panel, a common practice for those assigning the cases.

“Generally, we want to get a case because that gives us a little more insight into some of the decision-making that trial judges will have before them on these types of cases,” he said. “The tradition is that if they don’t have one, they will get one very soon.”

Often, attorneys arguing about centralized venues will point out locales that are easier to travel to than a drive from the airport to court in New York, he said. But that didn’t come up when deciding that the FedEx case would be located in South Bend, he recalls.
List of multidistrict litigation actions over four decades
“We had a constituent case here and I needed a case,” he said. “FedEx couldn’t really argue that any place was tough to get to… that all played into it.”

As one of the seven Article III judges serving on the MDL panel for a seven-year term through this past October, he is only the second person from Indiana to sit in that position. The other was the late U.S. Judge S. Hugh Dillin in the Southern District.

In handling the MDL actions on the bench, Judge Miller said it’s an interesting experience that’s different from the regular cases before a judge.

“It’s a whole different set of challenges than you’re used to, but it’s a lot of fun,” he said. “You have exposure to so many different lawyers and you’re touching cases that go coast-to-coast, maybe even beyond that. The process is still set up the regular way of litigation funneling toward trial and most won’t get there.”

From the attorneys’ perspectives, longtime lawyers involved in these types of cases describe MDL as being an important part of the overall handling of large litigation actions in the federal judiciary.

Attorney Mark Merkle at Krieg DeVault in Indianapolis serves as local counsel for Firestone, and in that role he’s participated in more than 500 mediations with hundreds of different attorneys on those cases and coordinated filings in each of the individual suits. In the early part of the decade, Merkle said he focused about 80 percent of his time on MDL actions. Recently, he has also been involved in the Mattel lead litigation pending in California and one of his Indiana cases was transferred into that jurisdiction.

“The differences in preparation is that you have to become familiar enough with each case to add value, but not immerse yourself in each case as to add another layer of cost and complexity,” he said, adding that an MDL lawyer must recognize those “trouble” cases and be able to get more involved in those.

In his MDL cases, Merkle said he’d spend a lot of time providing insight into how the court would react to various motions and said the judges look to local counsel as an intermediary with out-of-state lawyers.

“Often, I felt I was working for the court, assisting as traffic cop to cut down on misfilings, unnecessary motions, and temper arguments that would challenge the civility standard of our court,” he said. “But it’s all part of a bigger picture.”

Future of MDL

Presiding Judge John Heyburn II wonders whether a point in time arrives when MDL outlives its statutory usefulness and inclusion of a new tag-along action is counterproductive to the overall centralization. Fewer cases are going to verdict, and more universal settlements rather than individual resolutions are being reached. That is something the MDL panel might have to examine in coming years.

Judge Miller isn’t sure what’s ahead, but he thinks that lawyers and the general public are still largely unfamiliar with MDL. Some of the big cases have put the panel on the radar, and he said that one of the trends he sees is a way to spot what might ultimately get tagged for centralization.

“Follow the headlines,” he said. “It seems that whatever you see in the news, whether it’s a Toyota recall or BP oil spill, you wait about three or four months and then it’s on your docket. It’s like clockwork.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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