Statewide Coordination of Mass Tort Cases Becoming Increasingly Popular

Types of mass tort actions that have utilized statewide coordination include asbestos cases ' Bowe v. Allied Signal Inc., 806 A.2d 435 (Pa. Super. Ct., 2002); orthopedic bone screw cases ' Southard v. Temple Univ. Hospital, 566 Pa. 335, 781 A.2d 101 (2001); and breast implant cases ' McGhan Medical Corp. v. Superior Court, 11 Cal.App.4th 804, 814, 14 Cal Rptr.2d 264, 271 (Ct. App., 4th Dist. 1993).

The benefits of statewide coordination for mass tort actions are well described in Schultheis v. Davne, 35 Phila. Co. Rptr. 546, 557-558 (Ct. Comm. Pl. 1998), one of the hundreds of orthopedic bone screw cases coordinated statewide in Pennsylvania: 'The mass tort program was developed specifically to deal efficiently with great numbers of complex but similar cases by coordinating and streamlining discovery, pretrial motions, and trial in such cases ' the court organized the program, established master pleadings and master discovery, ruled on litigation-wide motions, and tried test cases … [which] resulted in the instant case coming to trial with all due speed.'

New York's Rule for Coordination

Under the new New York Rule 202.69, a Litigation Coordinating Panel comprised of four justices was created to determine when related actions pending in more than one judicial district in New York should be coordinated for purposes of pretrial proceedings. Rule 202.69 provides a number of factors for the panel to consider in deciding whether to coordinate, including:

• the complexity of the actions;
• whether there are common questions of law or fact;
• the risk that coordination will delay or increase the expense of the actions or prejudice a party;
• the risk of duplicative or inconsistent rulings;
• the convenience of the parties, witnesses and counsel;
• whether coordinated discovery would be advantageous; and
• the pendency of related actions in the federal courts or other states.

If the Panel orders coordination, it also must specify the number of Coordinating Justices and the county or counties in which the proceedings shall take place. 202.69(b)(4)(i) and (ii). The Administrative Judge of the local jurisdiction where the coordinated proceedings are to take place shall then select the necessary Coordinating Justice or Justices. 202.69(c)(i).

Rule 202.69 gives the Coordinating Justice explicit powers including: issuing case management orders, appointing steering committees and liaison counsel, issuing protective orders, directing the use of coordinated pleadings, requiring uniform requests for disclosure, and requiring the parties to participate in settlement discussions and court-annexed alternative dispute resolution. The Coordinating Justice may even require discovery within the coordinated actions to 'proceed jointly or in coordination with discovery in related federal or other states' actions.' 202.69(c)(3).

The powers of a Coordinating Justice in the New York statewide coordination system are basically those of an MDL judge in the federal courts. However, the power of a New York Coordinating Justice exceeds the power of an MDL judge in one instance: a Coordinating Justice is given the authority to 'try any part of any coordinated case on consent of the parties to that action.' 202.69(c)(2).

In contrast, the U.S. Supreme Court has held that an MDL judge lacks the authority to try a coordinated case on consent. See Lexecon Inc. v. Milberg Weiss Bershad Hynes and Lerach, 523 U.S. 26, 118 S.Ct. 956 (1998); Daniel Wise, 'New York Courts Adopt Federal Mass Torts Plan,' supra.

It should also be noted that the New York coordination system does lack at least one component of the MDL System, namely, that the Coordinating Justice cannot directly provide for costs or fee assessments, while the MDL Judge has the authority to direct that costs and fee assessments be paid to the plaintiffs' steering committee. Richard S. Mcgowan, 'Drug Mass Tort: Choosing the State or Federal Court System,' 11/1/2002 NYLJ (col.4).

Pennsylvania's Rules for Statewide Coordination

Unlike the New York and federal coordination systems, Pennsylvania does not have a supervisory panel. Instead, Rule 213.1 provides a more general mechanism where actions pending in different counties can be coordinated if the actions 'involve a common question of law or fact or which arise from the same transaction or occurrence.' Pa. R. Civ. P. 213.1(a).

The basic procedure is that a motion may be made by any party requesting that the 'court in which a complaint was first filed' should order coordination of the actions. In determining whether to grant coordination, the court is to consider factors similar to those listed in the New York Rule 202.69, including whether the common question of fact or law is 'predominating and significant to the litigation,' the convenience of the parties, witnesses and counsel, whether coordination would cause unreasonable delay, expense or prejudice, and the risks of duplicative and inconsistent rulings. 213.1(c). Once the actions are coordinated, the court can utilize procedures such as master pleadings, master discovery and litigation-wide motions. Schultheis v. Davne, 35 Phila. Co. Rptr. 546, 557-558 (Ct. Comm. Pl. 1998).

In addition, Rule 1041.1 'provides special civil procedural provisions to alleviate the complexity of asbestos cases.' Tohan v. Owens-Corning Fiberglas Corp., 696 A.2d 1195, 1197 n.2 (Super. Ct. 1997). For example, under Rule 1041.1(f), a motion for summary judgment filed by one defendant alleging a ground common to at least one other defendant shall be deemed filed on behalf of all such defendants. See Taylor v. Owens-Corning Fiberglas Corp., 446 Pa.Super. 174, 190, 666 A.2d 681, 689 (Super. Ct. 1995). This provision may also be utilized, at the court's discretion, in mass tort, products liability or toxic substance cases. 1041.2.

California's Rules for Statewide Coordination

California has a statewide coordination system for mass tort actions and other complex actions that is similar to the New York coordination system. Under Rule 404, where complex related actions share a 'common question of fact or law' and are 'pending in different courts,' a petition for coordination can be submitted to the Chairperson of the Judicial Council, who will then decide whether to grant coordination. Ca. Civ. Proc. '404. The Chairperson of the Judicial Council is to decide whether to grant coordination after considering: 'whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.' Ca. Civ. Proc. '404.1. See Ca. St. Trial Ct. Rules 1501, et seq. (providing mechanisms for requesting and obtaining coordination).

In McGhan Medical Corp. v. Superior Court, the major California case that discusses when coordination is appropriate, the court granted coordination of at least 300 breast implant cases, stating: 'We are absolutely satisfied that the preparation for trial in terms of depositions, interrogatories, admissions, collection of physical data, etc, will be better achieved if done in a coordinated manner.' 11 Cal.App.4th 804, 814, 14 Cal Rptr.2d 264, 271 (Ct. App., 4th Dist. 1993).

Once coordination is granted, the coordination trial judge 'shall assure an active role in all steps of pretrial, discovery, and trial proceedings.' Ca. St. Trial Ct. Rule 1541. This includes appointing liaison counsel, scheduling discovery, and scheduling and conducting hearings, conferences and even trials. 'The object of the procedure is to promote judicial efficiency and economy by providing for the unified management of both the pretrial and trial phases of the coordinated cases.' Citicorp North America, Inc. v. Superior Court, 213 Cal.App.3d 563, 565, 261 Cal.Rptr. 668, 669 n.3 (Ct. App., 2d Dist. 1989).

Conclusion

With the advent of Rule 202.69, New York has joined California and Pennsylvania as states with formal statewide coordination systems for handling mass tort actions. It is hoped that statewide coordination will help to alleviate the demands on the state courts due to the increasing volume of mass tort litigation.

Beth L. Kaufman is a partner and David Black is an associate at Schoeman, Updike & Kaufman, LLP, in New York. Telephone: (212) 661-5030.

On January 24, 2002, the New York state courts adopted a rule that provides a procedure for the statewide coordination of mass tort cases that is similar to the Multidistrict Litigation System (MDL) in the federal courts. Uniform Rules for the New York State Trial Courts ' 202.69. With the implementation of Rule 202.69, New York is the third state, following California and Pennsylvania, to institute formal statewide coordination of mass tort cases that share common questions of law or fact (New York had previously followed an ad hoc coordination system). See Daniel Wise, 'New York Courts Adopt Federal Mass Torts Plan,' 2/22/2002 NYLJ 1 (col.5); Ca. Civ. Proc. ” 404.1, et seq.; Ca. St. Trial Ct. Rules 1501, et seq.; Pa. R. Civ. P. ” 213.1, 1041.1, 1041.2.

During the last few years, statewide coordination has been used increasingly to handle related cases more efficiently at the pretrial stage, such as by the use of master pleadings and master discovery demands and responses. In addition to the formal procedures of New York, California and Pennsylvania, other states such as New Jersey, Texas, Mississippi and Oregon are employing informal procedures. See Wise, supra.

Although the rules for statewide coordination in New York, California and Pennsylvania can apply to various types of actions, these rules are especially useful in dealing with mass torts because the rules enable large numbers of cases involving a specific product and similar injuries to be processed at the same time throughout the state. In fact, the Chief Administrative Judge in New York has stated that the main purpose of the new Rule 202.69 is to enable the New York state courts to handle the increasing numbers of mass tort actions more efficiently. See 'Defense News,' 69 Def. Couns. J. 136 (April 2002). When mass tort actions are coordinated statewide, 'common issues can be determined, yet each individual plaintiff is responsible for the proof of particular facts applicable to that particular plaintiff.' Jolly v. Eli Lilly & Co. , 44 Cal.3d 1103, 1125, 751 P.2d 923, 938, n.19 (Calif. 1988).

Types of mass tort actions that have utilized statewide coordination include asbestos cases ' Bowe v. Allied Signal Inc. , 806 A.2d 435 (Pa. Super. Ct., 2002); orthopedic bone screw cases ' Southard v. Temple Univ. Hospital , 566 Pa. 335, 781 A.2d 101 (2001); and breast implant cases ' McGhan Medical Corp. v. Superior Court , 11 Cal.App.4th 804, 814, 14 Cal Rptr.2d 264, 271 (Ct. App., 4th Dist. 1993).

The benefits of statewide coordination for mass tort actions are well described in Schultheis v. Davne , 35 Phila. Co. Rptr. 546, 557-558 (Ct. Comm. Pl. 1998), one of the hundreds of orthopedic bone screw cases coordinated statewide in Pennsylvania: 'The mass tort program was developed specifically to deal efficiently with great numbers of complex but similar cases by coordinating and streamlining discovery, pretrial motions, and trial in such cases ' the court organized the program, established master pleadings and master discovery, ruled on litigation-wide motions, and tried test cases … [which] resulted in the instant case coming to trial with all due speed.'

New York's Rule for Coordination

Under the new New York Rule 202.69, a Litigation Coordinating Panel comprised of four justices was created to determine when related actions pending in more than one judicial district in New York should be coordinated for purposes of pretrial proceedings. Rule 202.69 provides a number of factors for the panel to consider in deciding whether to coordinate, including:

• the complexity of the actions;
• whether there are common questions of law or fact;
• the risk that coordination will delay or increase the expense of the actions or prejudice a party;
• the risk of duplicative or inconsistent rulings;
• the convenience of the parties, witnesses and counsel;
• whether coordinated discovery would be advantageous; and
• the pendency of related actions in the federal courts or other states.

If the Panel orders coordination, it also must specify the number of Coordinating Justices and the county or counties in which the proceedings shall take place. 202.69(b)(4)(i) and (ii). The Administrative Judge of the local jurisdiction where the coordinated proceedings are to take place shall then select the necessary Coordinating Justice or Justices. 202.69(c)(i).

Rule 202.69 gives the Coordinating Justice explicit powers including: issuing case management orders, appointing steering committees and liaison counsel, issuing protective orders, directing the use of coordinated pleadings, requiring uniform requests for disclosure, and requiring the parties to participate in settlement discussions and court-annexed alternative dispute resolution. The Coordinating Justice may even require discovery within the coordinated actions to 'proceed jointly or in coordination with discovery in related federal or other states' actions.' 202.69(c)(3).

The powers of a Coordinating Justice in the New York statewide coordination system are basically those of an MDL judge in the federal courts. However, the power of a New York Coordinating Justice exceeds the power of an MDL judge in one instance: a Coordinating Justice is given the authority to 'try any part of any coordinated case on consent of the parties to that action.' 202.69(c)(2).

In contrast, the U.S. Supreme Court has held that an MDL judge lacks the authority to try a coordinated case on consent. See Lexecon Inc. v. Milberg Weiss Bershad Hynes and Lerach , 523 U.S. 26, 118 S.Ct. 956 (1998); Daniel Wise, 'New York Courts Adopt Federal Mass Torts Plan,' supra.

It should also be noted that the New York coordination system does lack at least one component of the MDL System, namely, that the Coordinating Justice cannot directly provide for costs or fee assessments, while the MDL Judge has the authority to direct that costs and fee assessments be paid to the plaintiffs' steering committee. Richard S. Mcgowan, 'Drug Mass Tort: Choosing the State or Federal Court System,' 11/1/2002 NYLJ (col.4).

Pennsylvania's Rules for Statewide Coordination

Unlike the New York and federal coordination systems, Pennsylvania does not have a supervisory panel. Instead, Rule 213.1 provides a more general mechanism where actions pending in different counties can be coordinated if the actions 'involve a common question of law or fact or which arise from the same transaction or occurrence.' Pa. R. Civ. P. 213.1(a).

The basic procedure is that a motion may be made by any party requesting that the 'court in which a complaint was first filed' should order coordination of the actions. In determining whether to grant coordination, the court is to consider factors similar to those listed in the New York Rule 202.69, including whether the common question of fact or law is 'predominating and significant to the litigation,' the convenience of the parties, witnesses and counsel, whether coordination would cause unreasonable delay, expense or prejudice, and the risks of duplicative and inconsistent rulings. 213.1(c). Once the actions are coordinated, the court can utilize procedures such as master pleadings, master discovery and litigation-wide motions. Schultheis v. Davne , 35 Phila. Co. Rptr. 546, 557-558 (Ct. Comm. Pl. 1998).

In addition, Rule 1041.1 'provides special civil procedural provisions to alleviate the complexity of asbestos cases.' Tohan v. Owens-Corning Fiberglas Corp. , 696 A.2d 1195, 1197 n.2 (Super. Ct. 1997). For example, under Rule 1041.1(f), a motion for summary judgment filed by one defendant alleging a ground common to at least one other defendant shall be deemed filed on behalf of all such defendants. See Taylor v. Owens-Corning Fiberglas Corp. , 446 Pa.Super. 174, 190, 666 A.2d 681, 689 (Super. Ct. 1995). This provision may also be utilized, at the court's discretion, in mass tort, products liability or toxic substance cases. 1041.2.

California's Rules for Statewide Coordination

California has a statewide coordination system for mass tort actions and other complex actions that is similar to the New York coordination system. Under Rule 404, where complex related actions share a 'common question of fact or law' and are 'pending in different courts,' a petition for coordination can be submitted to the Chairperson of the Judicial Council, who will then decide whether to grant coordination. Ca. Civ. Proc. '404. The Chairperson of the Judicial Council is to decide whether to grant coordination after considering: 'whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.' Ca. Civ. Proc. '404.1. See Ca. St. Trial Ct. Rules 1501, et seq. (providing mechanisms for requesting and obtaining coordination).

In McGhan Medical Corp. v. Superior Court, the major California case that discusses when coordination is appropriate, the court granted coordination of at least 300 breast implant cases, stating: 'We are absolutely satisfied that the preparation for trial in terms of depositions, interrogatories, admissions, collection of physical data, etc, will be better achieved if done in a coordinated manner.' 11 Cal.App.4th 804, 814, 14 Cal Rptr.2d 264, 271 (Ct. App., 4th Dist. 1993).

Once coordination is granted, the coordination trial judge 'shall assure an active role in all steps of pretrial, discovery, and trial proceedings.' Ca. St. Trial Ct. Rule 1541. This includes appointing liaison counsel, scheduling discovery, and scheduling and conducting hearings, conferences and even trials. 'The object of the procedure is to promote judicial efficiency and economy by providing for the unified management of both the pretrial and trial phases of the coordinated cases.' Citicorp North America, Inc. v. Superior Court , 213 Cal.App.3d 563, 565, 261 Cal.Rptr. 668, 669 n.3 (Ct. App., 2d Dist. 1989).

Conclusion

With the advent of Rule 202.69, New York has joined California and Pennsylvania as states with formal statewide coordination systems for handling mass tort actions. It is hoped that statewide coordination will help to alleviate the demands on the state courts due to the increasing volume of mass tort litigation.

Beth L. Kaufman is a partner and David Black is an associate at Schoeman, Updike & Kaufman, LLP, in New York. Telephone: (212) 661-5030.