First Annual Mass-Tort MDL Flash Points

Challenges for the Next Generation of Transferee MDL Judges (Invitation-Only) Conference

Thu, 7 October, 2021 8:30am

This conference is open by invitation only. If you have experience in a mass-tort MDL leadership position and are interested in an invitation, please send a request to be invited along with a short description of your MDL experience here.

Join the James F. Humphreys Complex Litigation Center for a historic, invitation-only conference with 50 federal judges and 100 plaintiff and defense lawyers at GW Law. No conference held by the government or academic or other institution brings together so many federal judges and practicing lawyers to focus on a single litigation issue of national importance.

This conference will help shape the decision-making of the new generation of MDL transferee judges, arming them with information about how they can most effectively and fairly manage these actions, informed by the wisdom of experienced MDL judges, practicing counsel, and learned scholars.

MDLs have replaced class actions as the principal mode of aggregate litigation. But unlike class actions, which are governed by specific Federal Rules of Civil Procedure, MDLs have no official rules to guide the bench and bar. MDL transferee judges are compelled to fashion new practices and procedures out of whole cloth in every MDL to address the unique circumstances and challenges presented by their assigned MDL. The judges' task is all the more difficult because federal judges assigned MDLs most often have never previously handled one. By bringing together practicing lawyers, scholars, and judges, all can learn from each other on how best to manage the difficult issues arising in them.

Not only is this conference intended to prepare potential new MDL transferee judges, but equally importantly, it will provide information to more judges on an issue that is affecting the entire judiciary. MDLs' impact steadily grows, and mega mass-tort MDLs now represent more than one-half of all civil cases pending in the federal courts. The recent 3M MDL alone added 230,000 case filings, while two other MDLs have an additional 200,000 unfiled cases waiting in the wings and a third MDL, Paraquat, promises yet another 100,000 actions. The total number of actions from these four MDLs dwarfs the annual average of 300,000 civil case filings in federal courts and the impact is felt throughout the judiciary. One small example is that the civil-case filings per judgeship jumped from 423 in 2019 to 682 in 2021, primarily because of the filings in the 3M MDL.

On the first day of the two-day conference, six panels of plaintiff and defense lawyers will address recurring MDL issues moderated by preeminent law school professors, identifying MDL practices that were successful and practices resulted in unforeseen adverse consequences. The lawyers attending the conference will have an opportunity to add their own insights about other practices and procedures.

Only judges will attend the second day. Ten experienced MDL judges will respond in six panels moderated by the professors to the concerns raised the preceding day by the lawyers. The judges will then drill down into specific issues, led by the law professors.

The conference is held under the Chatham House Rule: "(P)articipants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), or that of any other participant, may be revealed."

The conference is expected to be held annually and is designed to provide a helpful forum for the development of best practices, academic scholarship, and discussion at the judges' annual fall Breakers conference. The conference is made possible by lawyer conference registration fees and the generous contributions of sponsors.

Registration

The registration fee for Thursday’s one-day conference for lawyers is $1,199, and includes conference materials, a continental breakfast, coffee breaks, lunch, grab-and-go snacks on Thursday, and a dinner on Thursday evening.

Registration

CLE will be applied for in New Jersey. Attorneys will receive a “Certificate of Attendance” and a completed “Uniform Application for Accreditation” form after the conference in order to submit CLE hours for your state.

Conference Agenda

Day One

7:30 am − 8:30 am: Breakfast (Jack Morton Auditorium)

8:30 am − 8:45 am: Welcoming Remarks

Dayna Bowen Matthew, Dean and Harold H. Green Professor of Law, GW Law
Roger H. Trangsrud, James F. Humphreys Professor of Complex Litigation and Civil Procedure, GW Law
John Rabiej

8:50 am − 9:50 am: Panel 1 − Appointment of Steering and Other Committees; Common Benefit Fund; Attorney Fees from Parallel State Actions

Professor Roger Trangsrud, Moderator
Elizabeth Cabraser, Lieff Cabraser Heimann & Bernstein
Joe Rice, Motley Rice
Navan Ward, Beasley Allen
Brent Wisner, Baum Hedlund
Eric Holland, Holland Law Firm

10 am − 11 am: Panel 2 − Developing Census Orders: Preemption and Daubert Motions; Third-Party Financing

Professor Roger Trangsrud, Moderator
John Beisner, Skadden Arps
Mark Cheffo, Dechert
Michael London, Douglas & London
Angela Browning, Litigation Management, Inc.
Andrew Cohen, Burford Capital

11 am − 11:15 am: Break

11:15 am − 12:15 pm: Panel 3 − Plaintiff/Defendant Facts Sheets; Effects of Census Orders; Discovery; ESI Protocols

Professor Alan Morrison, Moderator
John Rosenthal, Winston Strawn
Susan Sharko, Faegre Drinker Biddle & Reath
Mark Smith, Syngenta Corporation
Timothy Blood, Blood Hurst & O'Reardon
Diandra Debrosse Zimmermann, Dicello Levitt Gutzler

12:15 pm − 1:45 pm: Lunch (Contributor Sponsor FedArb)

1:45 pm − 2:45 pm: Panel 4 − Bellwether Selections

Professor Sam Issacharoff, Moderator
Andy Birchfield, Beasley Allen
William Gage, Butler Snow
Mark Lanier, Lanier Firm
Troy Rafferty, Levin, Papantonio, Rafferty
Brennan Torregrossa, GSK

2:55 pm − 4:15 pm: Panel 5 − Judicial Approaches to Settlement; Bard IVC Filter Remand Order

Professor Sam Issacharoff, Moderator
William Beausoleil, Hughes Hubbard & Reed
James Holston, Merck
David Cooner, Becton Dickinson and Russell Gaudreau, GreenbergTraurig
Hon. Diane Welsh, JAMS
Sheila Birnbaum, Dechert
Sarah London, Lief Cabraser Heimann & Bernstein

4:15 pm − 4:30 pm: Break

4:30 pm − 5:30 pm: Panel 6 − State Courts Coordination; Claims Administration Process; Centralized Information Platform

Professor Alan Morrison, Moderator
Richard Arsenault, Neblett, Beard & Arsenault
Sheila Birnbaum, Dechert
Christopher Guth, Bayer Corporation
Mark King, Ankura Consulting Group
Dustin Mire, Postlewaite & Netterville
Mark King, Ankura
Ginger Susman, ARCHER

6 pm −6:45 pm: Reception

6:45 pm − 9 pm: Dinner

Day Two

7:15 am − 8:00 am: Breakfast (Jacob Burns Moot Courtroom)

8:00 am − 9:30 am: Appointment of Steering Committee and Other Committees; Common Benefit Fund; Attorney Fees from Parallel State Actions; Preemption and Daubert Motions; Third-Party Financing

Professor Roger Trangsrud, Moderator
Judges (TBA)

9:30 am − 9:45 am: Break

9:45 am − 11:10 am: Plaintiff/Defendant Facts Sheets; Census Orders; Discovery; ESI Protocols; Bellwether Selections

Professors Sam Issacharoff and Alan Morrison, Moderator
Judges (TBA)

11:15 am − 12:30 pm: Judicial Approaches to Settlement; Bard IVC Filter Remand Order; State Courts Coordination; Claims Administration Process; Centralized Information Platform