Russell Paul, shareholder at Berger Montague

In cases where the judicial panel on multidistrict litigation (JPML) has consolidated both class actions and mass tort cases in the same multidistrict litigation (MDL) proceeding, a critical question arises regarding the leadership structure for that MDL—should leadership be composed of an undifferentiated group of counsel who have, collectively, asserted claims on behalf of individual personal injury plaintiffs and also on behalf of putative classes, or should leadership be tracked such that separate leadership is appointed for the individual and class claims? Going one step further, if an undifferentiated group is appointed, should appointed counsel be allowed to represent both individuals and the putative class? Or if leadership is tracked, is it permissible for any of the appointed counsel in one track to represent clients in the other track?

Certainly, all appointed counsel must work together to advance overlapping litigation needs, such as discovery. And, given the defendant's certain interest in finality, all counsel have the same interest in bringing the entire case to a successful conclusion as efficiently and effectively as possible. However, consumer class litigation presents different needs than personal injury litigation. As such, this article argues that MDL leadership should be tracked, and counsel appointed within each track so that each case type receives its own designated advocates in the leadership structure.

First, class counsel will be focused on concluding discovery and moving for class certification as quickly as possible so that notice can be sent to class members and the class case can move forward. Personal injury lawyers may wish to delay class notice and focus on trying bellwether cases as soon as possible. They are not concerned with protecting the interests of absent class members using the class action device and may even see absent class members as potential clients whose claims they prefer to litigate on an individual basis. Thus, the interests of the two types of lawyers may not align. "In mass torts, the litigation and discovery strategies will often … have a different focus than is familiar from class action litigation, which is divided into certification, merits, and, at times, damages phases." See Dodge, Jamie, "Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation," 64 Emory L.J. 329, 377 (2014). Pushing for bellwether trials too soon may limit the potential recovery in a class or overall settlement because it could force a truncated discovery process that fails to fully develop the facts and science at issue. Tracked leadership ensures that the course of the entire litigation is not driven by which claims present the most immediate prospect of recovery.

Second, the prospect that lawyers who simultaneously represent injured plaintiffs and the class may wish to opt their injured clients out of any certified class presents a foreseeable potential for conflicts, as in In re Vitamins Antitrust Class Actions, 215 F.3d 26 (D.C. Cir. 2000) (inherent conflict present when counsel attempted to represent class members and opt outs from the class); Meyer v. American Family Mutual Insurance, No. 3:14-CV-05305 RBL (W.D. Wash. June 3, 2016) (conflict existed where counsel attempted to represent both class members and opt outs).

Third, each type of case requires different experts. For example, injury cases require experts on causation that class cases would not require. Class cases require experts on issues related to class certification and potentially the development of Rule 23(b)(2) injunctive relief about how to most effectively halt or prevent a future recurrence of the conduct at issue, which are nonissues in personal injury cases. Thus, each type of counsel should bear the respective attorney time and expenses associated with vetting and hiring respective experts for their type of case and not be put in a position of having to pay for experts they do not need.

The Duke Center for Judicial Studies Guidelines and Best Practices specifically recommends that in "hybrid" MDLs involving class and personal injury cases, the transferee court should "typically appoint different counsel to take primary responsibility for personal injury claims on the one hand, and economic loss claims on the other." Bolch Judicial Institute, Duke Law School, "Guidelines and Best Practices: Implementing 2018 Amendments to Rule 23 Class Action Settlement Provisions," at 42-43 (Aug. 2018) (hereinafter Duke guidelines).

In matters involving both class actions for economic loss and individual suits for personal injury, MDL courts have frequently adopted a tracked leadership approach. In In re Toyota Motor Unintended Acceleration Marketing, Sales Practices and Products. Liability Litigation, for example, the court appointed one committee and co-leads for personal injury/wrongful death cases and a separate committee and co-leads for economic loss cases. MDL No. 2151, (C.D. Cal. May 14, 2010); see also In re Johnson & Johnson Talcum Powder Products Liability Litigation, MDL No. 2738 (D.N.J. Dec. 6, 2016), ECF Nos. 72 & 73 (entering separate orders appointing lead counsel for "consumer protection" and "personal injury" actions); In re Takeda Airbag Products Liability Litigation, MDL No. 2599 (S.D. Fla. Mar. 17, 2015), ECF No. 393 at 4-5 (appointing separate co-leads for the "economic damages track" and the "personal injury track"); In re Gen. Motors Ignition Switch Litigation, MDL No. 2543 (S.D.N.Y. Aug. 15, 2014), ECF No. 249 at 2 (appointing three co-leads, two with primary responsibility for economic loss claims and one with primary responsibility for personal injury claims); In re Zicam Cold Remedy Products Liability Litigation, MDL No. 2096 (D. Ariz. Mar. 1, 2010), ECF No. 182 at 1-2 (appointing separate lead counsel to prosecute "economic injury actions" and "personal injury actions").

Recently, in the Juul e-cigarette litigation, the JPML centralized three types of cases—personal injury, class and government-led cases—before U.S. District Judge William Orrick of the Northern District of California and noted that "the transferee judge can use separate tracks or other appropriate pretrial techniques to accommodate any differences among" the types of cases centralized, see In re Juul Labs Products Liability Litigation, MDL No. 2913, 396 F. Supp. 3d 1366, 1367 (U.S. Jud. Pan. Mult. Lit. 2019).

If separate leadership over the entire MDL proceeding is not appointed for each type of case, at the very least it should be clear which counsel represents which interests with respect to any committees that are formed. The Duke guidelines recognize the importance of this kind of balanced representation on task-based committees. "Tort plaintiffs counsel, and consumer class counsel may have different perspectives and needs regarding the prioritization and emphasis of discovery." "In creating hybrid MDLs, the judicial panel has recognized that separate discovery tracks may be created to accommodate these different perspectives and priorities, without creating a preference for one type of claim over another." In the Toyota Unintended Acceleration hybrid MDL, Judge James Selna appointed a "core discovery committee" comprised of a mix of counsel appointed as leads or liaisons to separately represent each of the class action and personal injury cases.

Further, if there is not separate leadership, then the leadership appointed must have great familiarity with the different types of cases involved and appreciate the conflicts that may arise between them. See Duke guidelines at 46 ("In hybrid cases, with the leadership structure that includes representatives of both the class and tort sides of the litigation, a premium is placed on counsel who are willing to understand and, within reason, accommodate the different norms, expectations, and styles of 'class' and 'mass tort' lawyers.").

Russell D. Paul is a shareholder in the securities, consumer protection, qui tam/whistleblower, corporate governance/shareholder rights and commercial litigation practice groups at Berger Montague. He concentrates his practice on securities class actions and derivative suits, complex securities, and commercial litigation matters, False Claims Act suits and consumer class actions.