Direct Filing in Multidistrict Litigation: Limiting Venue Options and Choice of Law for Plaintiffs

Category: Print Issues

Direct Filing in Multidistrict Litigation: Limiting Venue Options and Choice of Law for Plaintiffs

Lauren E. Godshall

Volume 29

, Issue 1

29 GEO. MASON L. REV. 3 (2021)

Abstract. We are in an age of massive multidistrict litigation (“MDLs”). MDLs contain thousands, sometimes tens-of-thousands of individual cases, involving the laws of all states and territories, and are handled by a single judge. Around half of all federal court cases are consolidated within an MDL. These MDL-assigned judges necessarily have the power to create new rules of law and practice through the sheer number of decisions and opinions required to handle pretrial matters. These judges are also adopting ad hoc practices like “direct filing” to ease their administrative burdens in the initiation of cases within a single MDL.

The combination of these two things (the number of decisions required in MDLs and the adoption of direct filing) has led to a new phenomenon: judicial disregard for the “home court” designation of direct-file plaintiffs.

Over the past several years, dozens of decisions parroting language from a handful of decisions, which were written primarily by one or two judges, have created a new rule of jurisdiction: Although plaintiffs who do not directly file in MDLs can file in any appropriate court, await transfer to the MDL court for all pretrial matters, and be remanded back to their original chosen jurisdiction for trial, a direct-file plaintiff will only be remanded “back” to the state where the injury was sustained (typically defined as the place of implantation in the massive medical products MDLs). This rule applies regardless of whether the plaintiffs utilizing direct filing would have filed in that state of implantation originally but for the administrative convenience of direct filing. This is a new trend in MDLs that turns a “convenient” administrative short-cut into a practice that overrides a plaintiff’s choice of forum, potentially impacting substantive outcomes.

Attorneys that file in MDLs and desire to protect their home court of choice should forego direct filing and instead file in their chosen court, then move or wait for transfer into the MDL.

Introduction

Plaintiffs in tort cases typically have several choices to make in filing their suit: where to file, what claims to include, and what kind of damages to seek. In the product liability matters typically consolidated in a multidistrict litigation (“MDL”), federal rules allow a plaintiff to file in any of several potential venues.¹ While the parties, once engaged in the lawsuit, may argue about which state law should apply to the claims, it is the home state where the matter is filed that determines the choice-of-law rules to balance the competing interests and decide which interested state’s law to then apply.² Choice-of-law rules vary from state to state, so the ultimate rule of law to be applied in a case that is, say, filed in Texas and involves a Texas plaintiff injured by a product implanted in Oklahoma and manufactured in California by a company with a corporate home in Delaware, is not a foregone conclusion.³ The only foregone conclusion is that the Texas court where the plaintiff chose to file her suit will use Texas choice-of-law rules to make that decision.⁴

Or, rather, this was the foregone conclusion. Now there is a new and small, but steadily growing, group of cases that permits a judge to override or ignore a plaintiff’s choice of original filing jurisdiction and instead declare that the place of implantation determines the court that sets the choice-of-law rules for the dispute. In the above example, this would change the Texas-law-based claim into an Oklahoma-law-based claim.

This group of cases arises out of product liability MDLs, the massive, consolidated cases that make up around half of the entire federal caseload.⁵ Following the growth of MDLs involving products—typically medical or consumer products—judges began to allow for “direct filing.” This is the practice of permitting plaintiffs to skip the step of filing in their chosen venue—which results in the case being transferred to the MDL court and consolidated with the MDL docket—and, instead, file directly in the MDL court, getting automatically added to the ongoing MDL itself. This is an ad hoc procedure that occurs outside of any rules of civil procedure but is frequently characterized as an administrative convenience.⁶

In 2012, Professor Andrew Bradt identified problems arising out of this procedure, as it was then used, in his article, The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation.⁷ Bradt highlighted the problems that arise when matters from all over the country are directly filed into MDLs, which leaves choice-of-law issues in disarray.⁸ There is no obvious “home court” to send the directly filed cases “back” to once MDL proceedings are complete, and there is no obvious “home-state” law to apply to any individual legal issues.⁹ Bradt posited that the issue could be resolved by having direct-file plaintiffs designate a proper home venue.¹⁰ This would allow our Texan plaintiff in the above example to designate Texas as the court she would have filed in, but for the expedience of direct filing. Our Texan plaintiff does not intend to change her Texas case—and Texas counsel—in any way by directly filing in an MDL, and she states this plainly by designating the appropriate Texas district court as her proper home venue on the short form complaint. This solution appeared to preserve the efficiency benefits of direct filing while eliminating the choice-of-law confusion from the same system.

This was a simple and plausible solution to the problem created by direct filing. And since the publication of Bradt’s article, many MDLs have added a designation like that in their direct-file short forms.¹¹ A new problem arises, however, from how MDL judges actually apply Bradt’s resolution. MDL decisions since the Bradt article demonstrate that, overwhelmingly, MDL judges ignore the proper home venue designation and simply declare the place of injury (substituting the place of implantation as the shorthand for the place of injury) as the “home” of the case, thus setting the choice-of-law rules.¹² This practice disregards the plaintiff’s choice allowed by the Federal Rules of Civil Procedure, which permit the filing of cases in any number of possible jurisdictions.

Consider a hypothetical MDL involving a New Jersey manufacturer of a medical product, which is sent to a district court in Ohio for all pretrial proceedings. Two Louisiana plaintiffs injured by the medical product want to file cases in the MDL. Plaintiff One opts for direct filing in the Ohio court, and designates New Jersey as the home jurisdiction, due to the defendants’ design, marketing, and manufacture of the product in New Jersey. Plaintiff Two opts to file in the District of New Jersey for the same reasons and then waits for her matter to be transferred to the Ohio court. The Ohio judge handles all pretrial matters within the MDL and ultimately remands all cases back to their home courts. Under this developing direct-filing “rule,” Plaintiff One will find herself in a Louisiana federal court, unlike Plaintiff Two, who will be duly remanded back to New Jersey. Although both Louisiana and New Jersey courts will possibly need to conduct a choice-of-law analysis, the starting point of that analysis is the conflict-of-law rules applied by the state in which the court sits. Plaintiff One ends up with a Louisiana-law-based choice-of-law analysis, while Plaintiff Two gets a New Jersey-law-based choice-of-law analysis. Direct filing, as an administrative shortcut, should not have this potentially substantive effect. To the extent that it does, parties and attorneys should be aware of this possibility and weigh the potential risks posed by direct filing. Additional risks involve whether counsel is even licensed to practice in the “surprise” remand jurisdiction.

Since the publication of Bradt’s article in 2012, the number of filed requests for consolidation before the Judicial Panel on Multidistrict Litigation (“JPML”), and granted MDLs from the JPML, has remained largely constant.¹³ In every year between 2012 and now, there have been around sixty to seventy pending separate product liability-based MDLs,¹⁴ and many of the judges overseeing these actions have opted for direct filing.¹⁵ Many judges permitting direct filing further allow individual plaintiffs to join the MDL by filing simple form petitions, in which a few questions establishing the plaintiff’s identity, product use, and injury are completed in a combination of check boxes and fill-in-the-blank questions.¹⁶ Also, since Bradt’s paper, many of these form petitions include a required home-state-forum designation, in which the plaintiff states the court that she would have filed her suit in, had direct filing into the MDL court not been an option.¹⁷

This paper reviews published and unpublished opinions generated by MDL judges, as well as judges to whom individual suits have been remanded, in large product liability matters, handled since Bradt’s 2012 paper, to determine whether judges are honoring the plaintiffs’ choice of designated home court or ignoring the choices in favor of their own expectations about the proper applicable law. This review demonstrates that the overwhelming majority of these decisions ignore the home-state-forum designation and simply declare that the proper remand destination is the court where the implantation or exposure or contact with the challenged product occurred. The pace of these decisions has increased dramatically in the past year, due in part to both MDL-handling judges and remand-court judges applying identical, tersely drafted language from a handful of medical product liability cases.¹⁸

This is a troubling development as the number of cited and citable cases that invalidate plaintiffs’ choice of home court forum grows. Bradt succeeded in one way, in that his proposal has been widely adopted in direct-filing cases and now short form complaints requiring the designation of a home state or “where you would have filed” question are practically industry standard.¹⁹ But his “solution” to the choice-of-law problem has been rendered meaningless now that so many judges require that designation by a plaintiff, then ignore that designation and instead insist on looking to the place of injury, further defined as “place of implantation” or exposure or ingestion.²⁰ Judges should not be faulted in making this declaration, as there are so many written (if unpublished) opinions declaring this to be the rule and no strong body of contrary case law suggesting that the plaintiff’s selection should control.²¹ But this newly developed body of law conflates the plaintiffs’ choice of home forum and the ultimate state law to be applied by skipping steps—steps that could impact what state applies to substantive issues. As another example, we return to Plaintiff One, from Louisiana, from the above hypothetical. Plaintiff One selects New Jersey, the home state of a major defendant, as the “place I would have filed but for direct filing” on her form. The MDL judge notes that Plaintiff One lives in and was injured in Louisiana, not New Jersey, and so instead applies Louisiana’s rule on statute of limitations when considering a motion to dismiss. However, if Plaintiff One had simply filed her suit in New Jersey, New Jersey’s choice-of-law rules would have applied to determine which state’s statute of limitations should apply to her claim. In fact, Plaintiff One designated New Jersey as her home state on her short form precisely because of New Jersey’s two-year limitations rule, anticipating that New Jersey law would arguably apply to limit the negligent acts of a New Jersey company. But she now is forced to argue why Louisiana’s choice-of-law rules should allow for the application of New Jersey’s statute of limitations in her case.

Part I of this paper provides an explanation of MDL practices and procedures, including how and why direct filings and short form complaints exist. Part II then looks at the historic cases exploring the conflict between a centralized MDL court and an individual plaintiff’s choice-of-law issues. Part III will address Bradt’s proposal and how it has been adopted and used by product liability MDL judges. Parts IV and V will then review the rulings on plaintiffs’ home-state selections in rulings from MDL judges and remand judges that implicate—or ignore—the plaintiffs’ home-state choice; Part IV will look at those decisions that refer to and apply the plaintiff’s designated choice and Part V will review those that disregard the stated choice or ignore it altogether in order to apply this new rule. Part VI concludes with an argument as to why the cases in Part V constitute a dangerous precedent that is building into a new rule under common law, such that attorneys evaluating where to file possible MDL cases should understand the risks to their clients. Part VI also concludes with new solutions that will either recognize the new rule expressly, so as to avoid setting traps for unwary plaintiffs and counsel, or, preferably, disregard this rule and instead ensure that plaintiffs’ home-state designations are indeed used as the starting point for all ensuing choice-of-law conflicts.

I. MDL and the Advent of Direct Filing

Federal MDL cases dominate the national federal civil litigation docket.²² In 2019, cases filed into or transferred into an MDL accounted for forty-seven percent of pending civil cases, by one center’s analysis.²³ A large number of these MDLs involve product liability matters,²⁴ and those product liability MDLs can involve thousands of individual cases asserting the same or similar claims against the same defendant.²⁵

For example, a new study is published that shows that a popular prescription medication has been linked to a deleterious side effect. Lawsuits begin to appear around the country, all of them raising similar product liability claims against the manufacturer. At some point, after some number of similar cases with similar claims have been filed, a plaintiff, defendant, or a group of either files for consolidation of these cases as an MDL by filing a short motion with the JPML. The motion will argue two things: (1) the group of matters should be consolidated, and (2) the consolidated matters should be handled by a specific judge or in a specific court.²⁶

MDL is governed by a single federal statute, which establishes the JPML.²⁷ The JPML is authorized by 28 U.S.C. section 1407, which creates the panel and authorizes it to review cases for potential consolidation.²⁸ The JPML consists of a group of district court judges from across all districts that meets quarterly and determines whether to grant requests for consolidation. The JPML can consolidate matters that have common issues of fact.²⁹ They can decide to transfer the related matters to any district court, although they often look for courts that are convenient to the parties and have a willing judge who is able to handle the matter. The matters can only be consolidated for pretrial matters; once the issues are ready for trial, there is no further MDL jurisdiction over the matter.³⁰ This limitation is significant: The MDL judge has no jurisdiction beyond pretrial proceedings. Once matters are through discovery and motion practice and are considered ready for trial, they must be remanded for trial.³¹

If the JPML decides to grant consolidation of the MDL and finds a willing and acceptable judge, the matters already before the JPML will then be transferred to that MDL court. This takes a few days. The formation of an MDL will often trigger a wave of new cases being filed, as now it appears the subject of the MDL might allow for a viable claim.³² The cases transferred to the MDL court in the aftermath of the MDL formation are called “tag-along cases” and will be granted a “Conditional Transfer Order” to move the cases from their home court to the MDL court.³³

At this point, there are no formal rules directing how the transferee judge now in-charge of the MDL must handle all pretrial proceedings.³⁴ There are, however, typical practices and recommendations from the Federal Judicial Center on how best to manage massive MDL dockets.³⁵ For example, an MDL judge will typically request that the plaintiffs provide a suggested group of candidates to act as the “Plaintiffs Steering Committee (“PSC”),” which will serve as the liaison between the court and the hundreds or thousands of individual attorneys.³⁶ The PSC is often divided into topical committees like “Law and Briefing,” “Discovery and Experts,” “Settlement,” and so forth.³⁷ The judge also may decide, initially or at a later date, to appoint a special master for any purpose. Special masters and claims administrators have been used to track PSC billing submissions in the Taxotere MDL,³⁸ or direct settlement allocations in the Deepwater Horizon MDL.³⁹

Particularly in the case of product liability MDLs, such as the big medical device and drug cases, the MDL judge may then call for the submission of a master petition. This is a “mega” petition that combines the commonly asserted causes of action.⁴⁰ If there is a master petition, there usually is a “short form complaint” also used, which allows plaintiffs to adopt the master petition without re-asserting all of the separate paragraphs by simply completing and filing a brief worksheet with salient individual facts (name, address, place of injury, date of injury, etc.).⁴¹ This is achievable in the product liability cases where causes of action largely are identical across thousands of plaintiffs. While this is often treated as “standard practice,” however, there is in fact no true “standard” for MDLs, and every judge can determine on their own whether or not to require a master petition and short form complaints. In fact, there is legal argument against the practice,⁴² and some judges require every plaintiff to file an individual and complete petition, like in the Zostavax MDL.⁴³ In fact, in the Zostavax MDL, the judge dismissed multiple claims after the judge criticized the plaintiffs’ identical petitions, copied from an original filing, and determined these petitions did not adequately allege each individual case: “Each of the 173 complaints is full of boilerplate language unrelated to the individual case and is the antithesis of how a proper federal complaint should be drafted. The one-size-fits-all approach of plaintiffs’ counsel produced allegations that are absurd on their face as to every plaintiff.”⁴⁴ However, Zostavax is unusual in this regard, and many MDLs are allowing the filing of standardized short form complaints.

Another preliminary issue that goes hand-in-glove with the question of a master petition is whether to allow for direct filing. Once an MDL is formed, cases will be transferred into the MDL court from the courts where they first originate. Practically, this occurs either automatically via the court clerk noting a designated “related case” on the civil cover sheet or through one of the parties notifying the JPML of a “tag-along” case and requesting transfer into the MDL. However, many MDL courts opt for allowing direct filing (i.e., permitting plaintiffs to file directly into the MDL court as a first step). This is procedurally awkward, because typically the plaintiffs do not have personal jurisdiction in the MDL court, and there is an argument that MDL judges cannot properly assert jurisdiction over direct-filed cases.⁴⁵ Regardless, direct filing is a commonly used mechanism. For example, in the Xarelto MDL⁴⁶ from the Eastern District of Louisiana, the court order on direct filing declared:

In order to eliminate delays associated with the transfer to this Court of cases filed in or removed to other federal district courts and to promote judicial efficiency, any plaintiff whose case would be subject to transfer to MDL No. 2592 may file his or her complaint against all Defendants directly in MDL No. 2592 in the Eastern District of Louisiana.⁴⁷

There are also often agreed-upon shortcuts in service of defendants as well, such as an emailed copy to counsel or a dedicated email address, or a mailed copy to a specific legal liaison.⁴⁸

As Bradt points out in The Shortest Distance, there are numerous reasons why the administrative short-cut of direct filing into an MDL is beneficial.⁴⁹ From the plaintiff practitioners’ standpoint, this skips the delay caused by waiting for transfer and permits access to the PSC and their guidance, immediate participation in potential bellwether plaintiff pools,⁵⁰ and access to online document repositories and plaintiff fact sheet databases, as well as other time-sensitive issues.⁵¹ This also avoids confusion and litigation at the home-court level that can occur prior to transfer—some courts are extremely efficient at assigning cases, setting up initial scheduling conferences, and ordering disclosures, meetings with magistrates, and so forth, such that even a brief waiting period in the home court prior to transfer can create a series of expectations that may then travel with that case into the MDL.⁵² Where the direct-file option is available, it tends to become the favored procedure.⁵³

Judge Eldon Fallon of the Eastern District of Louisiana, who has built a reputation of experience with large MDLs, has also written about the benefits of the direct filing.⁵⁴ In his 2008 article about the possibilities of direct filing, he and his co-authors observe:

[T]he transferee court permits plaintiffs who do not reside in the judicial district encompassing the transferee court to file cases directly into the MDL. This procedure obviates the expense and delay inherent with plaintiffs having to file their cases in local federal courts around the country after the creation of an MDL and then waiting for the MDL Panel to transfer the “tag-along” cases to the transferee court. In addition, it eliminates the judicial inefficiency that results from two separate clerk’s offices having to docket and maintain the same case and three separate courts (the transferor court, the MDL Panel, and the transferee court) having to preside over the same matter.⁵⁵

Direct filing of course is problematic, as it means that a court is granting itself jurisdiction over a diversity tort matter that could not have been brought before it, without first obtaining transfer jurisdiction through the JPML. In the C.R. BardHernia Mesh MDL⁵⁶ before the Southern District of Ohio, the defendant company is based in New Jersey and plaintiffs are located all over the country, such that an Oregon plaintiff could sue a New Jersey defendant alleging Oregon state-law-based claims, yet file in Ohio.⁵⁷ This is an administrative shortcut that also violates a fundamental rule of procedure: Article III courts have limited jurisdiction, and this is an expansion of that jurisdiction.⁵⁸ Of course, it is also merely a shortcut, in that the JPML was inevitably going to transfer pretrial handling of the case to that MDL court, and the MDL court cannot assert jurisdiction over the ultimate trial of the decision from cases arising in outside jurisdictions. But the ZostavaxMDL-handling judge, who, for example, has resisted efforts to allow short form complaints and direct filing into the MDL he is handling,⁵⁹ is certainly not legally wrong. Moreover, they have avoided the direct-filing home-state issues explored below entirely, by instead having plaintiffs select a home-state venue through the traditional method of physically filing there and going through the formal steps of being transferred to the MDL court after filing at home.⁶⁰

In any event, the numbers do not lie: Where direct filing is available, plaintiffs overwhelmingly choose to file directly.⁶¹ And we currently operate in a world where tens of thousands of directly filed cases are handled by MDL judges up to the point of remand and trial.⁶² Now that we are in the world of direct filing, the next step is to look at where these “homeless” cases go upon remand. In fact, the word “remand” is a difficult one to use here, as it effectively requires a return of a case.⁶³ The direct-filed case has only ever existed as a case filed in the MDL court; truly there is no “returning” that case.

This issue has been discussed in theory, but the actual practice has been extremely limited until recently, as MDLs are a relatively recent development in jurisprudence and almost all of the large product liability MDLs resolve through settlement. There are now, however, enough mega-MDLs advancing to the point where decisions are regularly being made about what state law should apply to a case directly filed in the “wrong” jurisdiction. Part II will discuss the issue of applying state law to a case transferred due to MDLs, which should, in theory, provide guidance on how directly filed cases should also be handled when choice-of-law issues arise, while later sections of this Article will turn to what has actually been happening.

II. The MDL Choice-of-Law Problem

The question of where to send direct-filed cases once they are ready for trial arises out of a solution for another, possibly more significant issue: The question of which law to apply in MDL cases involving multiple jurisdictions. It hardly needs to be said that states each handle tort claims in different ways, from statutes of limitations, to the allowance of punitive damages, to considerations of joint-and-several liability, mitigation, express warranty liability, and so on. As summarized by Professor Larry Kramer, “different states with legitimate interests have made different judgments about how to handle tort problems. Different outcomes are thus both expected and acceptable.”⁶⁴ How then to reconcile these natural differences in a centralized lawsuit in a single location?

The 1941 Supreme Court decision in Klaxon Co. v. Stentor Electric Manufacturing Co.⁶⁵313 U.S. 487 (1941). set the stage for the choice-of-law problem now faced by MDL courts.⁶⁶ Klaxon was not itself an MDL case but rather involved a breach of contract, filed in a Delaware federal court, between a New York corporation and a Delaware corporation, under a contract made in New York.⁶⁷ New York had a rule mandating the addition of prejudgment interest on an award.⁶⁸ Delaware apparently did not.⁶⁹ The jury deciding the case was not asked to determine whether prejudgment interest should be awarded as the New York party presumed it would, and the Delaware party presumed it would not.⁷⁰

The Supreme Court held that a federal court, sitting in diversity, must follow the choice-of-law rules of the state in which it is sitting.⁷¹ A federal court in Delaware, hearing a case under 28 U.S.C. section 1331, must apply Delaware choice-of-law rules. As a result, there would be no prejudgment interest for poor Stentor Electric (a lesson in the danger of making assumptions about the choice-of-law analysis that will be echoed further below). As Bradt expressed in The Shortest Distance, “states’ choice-of-law rules represent a state’s substantive decision on the scope of its law, and diversity jurisdiction does not warrant departure from those rules.”⁷²

This remained the consistent policy of the Supreme Court, as expressed years later in Van Dusen v. Barrack,⁷³ which involved a multi-state plane crash with two different procedural rules on how to bring wrongful death cases.⁷⁴ The defendants sought to transfer all matters to a single court, which raised the concern that cases properly filed in one state would be considered improperly filed under the wrongful death rules when filed in another state, and thus subject to dismissal due to the change in venue.⁷⁵ The Court dispelled that concern in its ruling, declaring that the transfer of a case to a new jurisdiction for purposes of aggregation was a “housekeeping measure” and could not change the law that was intended originally to apply to the case.⁷⁶ The Van Dusen opinion is notable for its recognition of “plaintiff’s venue privilege.”⁷⁷ It noted that because “§ 1404(a) operates on the premise that the plaintiff has properly exercised his venue privilege,” plaintiffs should then be allowed “to retain whatever advantages may flow from the state laws of the forum they have initially selected.”⁷⁸

Klaxon and Van Dusen pre-date the passage of the MDL statute in 1968⁷⁹ but their holdings have been carried forward and applied in the MDL context. The Supreme Court explained in Ferens v. John Deere Co.⁸⁰494 U.S. 516 (1990). that in standard, non-MDL cases a transfer of forum “does not change the law applicable to a diversity case.”⁸¹ The Supreme Court has explained that section 1404(a), which authorizes transfers for the convenience of parties and witnesses, is “a housekeeping measure that should not alter the state law governing a case under Erie.”⁸² The question then arises, what happens in the MDL context? Bradt describes this as a booming area of litigation; the boom has continued at least to hold steady—if not expand—accounting for a huge percentage of cases heard in federal court every year.⁸³ And of those, a massive majority are the classic products liability MDLs that generate the thousands of billboard, radio and television—and now social media—ads that are encountered everywhere.⁸⁴

Under 28 U.S.C. section 1407, MDL courts possess limited authority to rule on pretrial motions and handle pretrial matters like discovery. This often means MDL judges oversee and rule on motions probing the adequacy of the claims under various state laws—which may mean they are resolving state-law-based-claims for a state in which they do not sit. The choice of law for these pretrial motions depends on whether they involve federal or state law.

When analyzing questions of federal law, the transferee court should apply the law of the circuit in which it is located. When considering questions of state law, however, the transferee court must apply the state law that would have applied to the individual cases had they not been transferred for consolidation.⁸⁵

In cases based on diversity jurisdiction, which comprise the bulk of massive MDLs consolidated for product liability claims, the applicable choice-of-law rules are those of the states where the actions were originally filed.⁸⁶ Of course, this rule assumes that these actions were filed in a home court and then transferred elsewhere.

In accord with the Supreme Court’s view of section 1404(a), transfers caused by the JPML are similarly treated as simply “a change of courtrooms.”⁸⁷ The location of the MDL court itself is an “accident of bureaucratic convenience” that is not intended to “elevate the law of the MDL forum.”⁸⁸ We should not change our usual choice-of-law practices solely for mass litigation, as summarized by Kramer:

Because choice of law is part of the process of defining the parties’ rights, it should not change simply because, as a matter of administrative convenience and efficiency, we have combined many claims in one proceeding; whatever choice-of-law rules we use to define substantive rights should be the same for ordinary and complex cases.⁸⁹

The Federal Judicial Center, which provides information and assistance to MDL judges, notes that this leaves MDL courts handling numerous cases that would not otherwise fall within its jurisdiction, and thus handling cases from states with varying substantive and procedural laws:

Differences in the substantive law governing liability and damages may substantially affect discovery, trial, and settlement. In dispersed, multistate defective products litigation, choice of law issues may be especially problematic because a wide range of state laws may apply, and the state in which the action is pending may not have a significant relationship with many of the plaintiffs, with the defendants, or with the activities that are subject to the litigation. ⁹⁰

This was echoed by the judge handling the Valsartan MDL:⁹¹

It is nearly an unassailable conclusion that the laws of the fifty states with respect to some of the causes of actions will conflict and affect the outcome of the case. Even a cursory review of the law confirms this conclusion. For instance, under New York’s law for negligent misrepresentation a plaintiff is required to show either privity of contract between the parties or a relationship approaching privity, while Texas does not require such a showing.⁹²

In her article on courts’ ability to handle complex conflicts-of-law issues, Professor Katherine Florey suggests that courts are best equipped to handle “little” conflicts of law, where they do not need to analyze far-reaching questions of social values and policy.⁹³ MDLs, at least legally, are often fairly straightforward tort cases: There is the use of X medical device; there is Y injury allegedly caused by that medical device; there are damages as a result. Big policy-level questions are typically not implicated. The only complicating factor artificially overlaid onto this basic tort claim premise is the procedural transfer and consolidation of nationwide suits into one forum. This is not to understate the complexity, given the potential for over fifty individual jurisdictions to be involved in a single MDL, but the issue is more the “fiendishly difficult problems of administration”:⁹⁴

It is fair to say that choice-of-law issues represent one of the most serious obstacles—if not the most serious—to consolidating cases, even where joinder might otherwise serve the interests of efficiency and justice. Choice-of-lawproblems have played a significant role in rolling back the national mass-tort class action, and threaten to do the same in undermining the usefulness of MDL. Further, even when choice-of-law issues do not interfere with aggregation, they pose fiendishly difficult problems of administration for judges, who sometimes stretch choice-of-law doctrine almost to the breaking point to avoid the unmanageable complexity that might otherwise result.⁹⁵

Florey critically reviewed a choice-of-law struggle in a multi-state airplane crash suit involving potential punitive damages.⁹⁶ She concluded that the court could be faulted “for engaging in somewhat slipshod reasoning and failing to apply the relevant methodologies carefully” in determining the applicable law to a determination of whether punitive damages were available.⁹⁷

Regardless, why was an MDL court determining whether punitive damages were available? Because the defendants and plaintiffs were from various states that did and did not allow punitive damages awards. Had the plaintiffs been able to designate their choice of jurisdiction upon entry to the MDL—signaled either by a designation on a short form complaint or by filing in that jurisdiction and awaiting transfer from it—the criticized multi-state analysis could have been foreclosed entirely. MDL courts, arguably, should not ever need to make damages-related determinations, but realistically, MDL courts often establish discovery parameters and settlement protocols that require state-law-specific information, such as whether punitive damages are awardable, or resolve other individual-case-level issues before remand.⁹⁸ MDL courts also often hear preliminary motions to dismiss that will turn on state-law analysis.⁹⁹

The MDL court gives a home to cases from across the nation for streamlining purposes; it does not change the inherent nature of those individual cases as being individual cases filed in specific home jurisdictions. That is an important distinction between MDLs and class actions—the individual MDL plaintiff remains the master of their case throughout, despite being bodily lifted from, for example, Louisiana, and deposited in Ohio for pretrial purposes.¹⁰⁰ The proceedings in Ohio did not arise under Ohio products liability law and Louisiana choice-of-law rules should still be applied to the claim.

This is well illustrated in Crespo v. Merck & Co.,¹⁰¹ in which a case was filed in New Jersey and then transferred by action of the JPML to the Eastern District of New York for consolidation with an MDL. Considering a motion for summary judgment in the individual suit, the judge noted that, despite the case currently being in a New York courtroom, this was a New Jersey case, and thus he would apply New Jersey choice-of-law rules.¹⁰² The court then noted the two jurisdictions with potential interest in the action: “New Jersey is the state in which plaintiffs filed this action, and the state in which defendants are incorporated, have their principal place of business, and made decisions regarding the labeling and marketing of Propecia. Florida is the state in which Mr. Crespo was prescribed, purchased, and took Propecia.”¹⁰³ Although Florida was the place of injury and place of the plaintiff’s residence, Florida was not the home state, as the matter was originally filed in New Jersey and thus the judge applied New Jersey’s choice-of-law rules.¹⁰⁴ Applying those rules, the New York MDL judge found that New Jersey’s interests in the plaintiff’s express warranty claims trumped the interests of Florida, and thus New Jersey’s statute of limitations for that claim would apply, barring the claim as untimely.¹⁰⁵

The U.S. Court of Appeals for the Sixth Circuit was extremely clear on this issue in Sutherland v. DCC Litigation Facility, Inc. (In re Dow Corning Corp.),¹⁰⁶ which expressly carried forward the reasoning of Van Dusen and Ferens into the MDL context:

There is no question that if this were a diversity case whose venue was transferred pursuant to the multidistrict litigation statute, 28 U.S.C. § 1407, or general change-of-venue statute, 28 U.S.C. § 1404, the district court would be bound to apply North Carolina’s choice of law rules. In Van Dusen v. Barrack and Ferens v. John Deere Company, the Supreme Court made clear that normally the appropriate state’s choice of law rule attaches when and where the plaintiff files her complaint and then travels with the case.¹⁰⁷

District judges presiding over MDLs have appeared to embrace the same conclusion the Sixth Circuit reached in In re Dow Corning—when presiding over an MDL:

[T]he choice-of-law principles that the transferor court will apply are those of the [s]tate where the transferor court sits, and not, for example, the choice-of-law principles of Ohio, where the MDL court sits. This is because: (1) “[i]n diversity cases [a court must] apply the choice-of-law rules . . . of the forum state;” and (2) “[i]n MDL cases, the forum state is typically the state in which the action was initially filed before being transferred to the MDL court.”¹⁰⁸

This principle was applied in the earlier-decided Guidant Corp. Implantable Defibrillators MDL.¹⁰⁹See In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., 489 F. Supp. 2d 932, 934–35 (D. Minn. 2007) (applying the choice-of-law rules of the transferor forum in a case transferred by the MDL Panel and selected as the first bellwether trial). In that case, the plaintiff filed in California and was transferred via a JPML order to the MDL court in Minnesota.¹¹⁰ The plaintiff then adopted the master complaint and argued that Minnesota’s choice-of-law rules should apply, as though the case had originated in Minnesota.¹¹¹ The court disagreed and applied the rule from Van Dusen, holding instead that because the plaintiff filed in California, California’s choice-of-law rules apply.¹¹² Subsequent transfer to Minnesota and adoption of a master complaint filed in Minnesota did not erase or undo the original California filing.¹¹³

Per Wahl v. General Electric Co.,¹¹⁴ this application of the home-state’s choice-of-law rules includes both procedural rules, like statutes of limitations, and substantive rules, such as the availability of punitive damages.¹¹⁵ The MDL judge must turn to the law of the true home state of an individual suit that is consolidated within the MDL for all purposes.¹¹⁶ Other courts agree with this analysis, applying the home-state rules across all types of procedural and substantive issues, like statutes of limitations, how to file suit on behalf of a deceased party, and the applicability of punitive damages.¹¹⁷

Numerous judges handling MDL cases across the country agree that it is the originating court’s conflict-of-laws standards that are applied to each individual consolidated case.¹¹⁸ This leads to complex choice-of-law decisions that have to be repeated for each individual plaintiff from a different state.¹¹⁹ But it also makes sense: The MDL statute provides limited jurisdiction over individual MDL cases in order to address large, unified issues, not individualized state law inquiries. Where an individualized state law inquiry is required—say, how a deceased plaintiff should be represented in the MDL—the location of the MDL should not play a role in the outcome of that decision, nor was the MDL itself created to answer that type of question. The MDL court is not the home of any case, but rather a holding place where common issues are addressed without changing the outcome of individual issues.

While this is almost universally accepted as true, there are a few outlier decisions that apply the state-law rules of an MDL court’s own state (without even mentioning the underlying choice-of-law decision being made) to individual suits consolidated within the MDL. Byers v. Lincoln Electric Co.¹²⁰ is cited in Wahl as standing for the proposition—which Wahl disagrees with—that an MDL plaintiff’s case is governed by the law where the MDL is filed.¹²¹ But that conclusion overstates the ruling in Byers: The Byerscase was specifically filed in Ohio, where two of the defendants were located, and Byers himself sought the application of Ohio law.¹²² This was not a larger announcement of a new legal practice, but rather more of a coincidence that an Ohio MDL court handled an Ohio choice-of-law decision and ultimately applied Ohio law, as the parties all seemed to desire.

The Vioxx MDL¹²³ opinion is more significant, particularly given that a highly experienced and sought-after MDL judge, Judge Fallon from the Eastern District of Louisiana, appeared to create a new rule that deviated significantly from the MDL norm—and applied that norm specifically to direct-filed cases.¹²⁴ The Vioxx decision, although not expressly cited by the later-discussed cases that appear to create a new rule for direct-filed cases only, may in fact be the progenitor for the disparate treatment of direct-filed versus transferred cases further explored in Part V below.

In Vioxx, Judge Fallon went to great lengths to draw a distinction between cases transferred from their home courts to the MDL and cases filed directly in the MDL through the direct-file mechanism.¹²⁵ The former, he agrees, should have their home-state choice-of-law apply.¹²⁶ The latter, however, he insists, have availed themselves of Louisiana choice-of-law rules.¹²⁷ This part of the ruling, however, has not been adopted by any other judge to date.¹²⁸

As a highly influential figure in the MDL world, single-handedly presiding over thirteen percent of all nationwide MDL cases from 2015 to 2019,¹²⁹ Judge Fallon’s decision in Vioxx to treat direct-filed cases as arising in the MDL court where they were directly filed could easily have shifted the treatment of all direct-filed cases, notwithstanding the other decisions that treated them differently.

In fact, Judge Fallon followed his 2007 decision with a 2008 law review article, in which he further advocates for the treatment of direct-filed cases as cases arising “in” the state of the MDL court:

A case filed directly into the MDL, whether by a citizen of the state in which the MDL sits or by a citizen of another jurisdiction, vests the transferee court with complete authority over every aspect of that case. This is because the transferee court is no longer cognizable as the transferee court under 28 U.S.C. § 1407, but is technically the forum court. Therefore, by filing cases directly into the MDL, plaintiffs, in effect, waive their Lexecon objections, thereby subjecting their cases to trial within the MDL.¹³⁰

Judge Fallon is plainly correct that there is no procedural mechanism in the JPML rules or the codes of civil procedure that permits the direct filing of cases in an MDL court that could not otherwise entertain jurisdiction over the case. He resolves the issue by allowing direct filing in the MDLs under his management but then treating those cases as having been filed in Louisiana and thus arising under Louisiana state law. This makes intuitive sense, as for example a VioxxMDL case filed in the Eastern District of Louisiana, asserting state-law-based product liability claims, is clearly a diversity action that must be subject to the state laws of the state where the court sits. But it does not work in practice, as that case was filed by a non-Louisiana plaintiff against a non-Louisiana defendant and involved an injury occurring outside Louisiana such that, had the action been filed originally in a Louisiana state court, that court would have dismissed for lack of jurisdiction.

Consolidation in the MDL is an exception to the regular rules of jurisdiction and case management; direct filing is another step further outside the norms of jurisdiction. A more consistent approach would be to deny direct filing, as several judges have done, requiring the rules-based approach of filing “at home” and then transferring to the MDL court for consolidation via the JPML. Once direct filing enters the picture, we have already stepped outside the few rules of procedure that do exist for MDLs, and it seems inconsistent to argue that a case lacking Louisiana personal and subject-matter jurisdiction can be directly filed into a Louisiana federal court while also asserting that Louisiana law can be asserted over that claim.

In 2014, Judge Fallon revisited these issues in the Xarelto MDL, a similar products-liability battle with plaintiffs filing from every state and territory. In that MDL, Judge Fallon allowed for direct filing but then, needing a way to address remand, created an entire system for litigating the home-state designation of each individual case prior to remand:

Upon completion of all pretrial proceedings applicable to a case directly before this Court, pursuant to this Order, this Court, pursuant to 28 U.S.C. § 1404(a), will transfer that case to the federal district court in the district where the plaintiff allegedly was injured or where plaintiff resided at the time of his or her alleged injury, after giving the parties an opportunity to meet and confer and be heard on the issue. All Defendants stipulate and agree that they will not assert any objection of improper venue pursuant to FRCP 12(b) upon transfer consistent with the provisions in this paragraph and this Order.¹³¹

This system was made necessary by the format of the short form and “Joint Complaint,” a version of a Master Complaint used in this matter, neither of which allowed plaintiffs to make the designation of a “but for” home venue.¹³² These instead limited the plaintiffs to arguing between two potential home venues—place of injury or residence at time of injury—and ignored the plaintiffs’ other valid legal options, like the headquarters of the defendants.¹³³ While this method acknowledges that Louisiana choice-of-law rules do not apply to direct-filed cases with an MDL, and indeed provides for a fair hearing before the judge on the question of where to transfer the matter, it also increases the administrative complexity, requiring mini trials to resolve the questions of “from” where a case came and “to” where it should be sent? This method also appears to limit venue choices beyond what the law would otherwise allow.

This approach was echoed in the Incretin Mimetics MDL,¹³⁴ in which a Southern District of California judge created a similar system to determine where cases should be transferred at the close of MDL proceedings:

When appropriate, the parties will be directed to meet and confer to attempt to reach agreement on the proper venue for transfer and, if approved, will be so transferred pursuant to subsequent order of this Court. If, however, the parties cannot reach an agreement, this Court will determine the federal district of proper venue to which the case should be transferred after briefing from the parties.¹³⁵

This complex system seems especially unnecessary in this case, as the short form complaint actually provided a space for plaintiffs to designate their “District Court and Division in which you might have otherwise filed absent the direct filing order entered by this Court.”¹³⁶ In Xarelto, there was no place to make such a declaration prior to remand and thus an opportunity to argue where one would have filed their claim was fair. Yet the Incretin Mimetics procedure does not pre-limit the potential venues that a plaintiff can argue for their matter to be sent. In both matters, however, the remand procedures were lengthy and complex.¹³⁷

This is where Bradt’s article best enters the discussion, suggesting a compromise that allows for the realization of direct filing’s benefits while preserving a plaintiff’s ability to maintain the legal benefits from their chosen home court, and also permits MDL judges to quickly and painlessly move cases to the appropriate home court after MDL proceedings are complete.¹³⁸ Of course, as the above Incretin Mimetics example already foreshadows, this system is only effective in protecting a plaintiff’s choice of venue and minimizing administrative burdens if the MDL court (or transferee court) accepts and honors a plaintiff’s designation of their home court.

III. The Shortest Distance Summary and Proposed Solution

The direct-filing “answer” to the administrative problems of a massive MDL has in turn spawned its own problem: Where did this case come from? There is often no natural diversity jurisdiction in the MDL court overall, or even most, of the individual cases, and no federal questions are involved in a standard product liability MDL. Moreover, throughout the 2000s, as the MDL docket grew and grew, a disparity in treatment of direct-filed cases was emerging in practice. The 2007 Vioxx decision, treating all direct-filed cases as though they had originated in Louisiana, stood in sharp contrast to a decision from the Bausch & Lomb MDL¹³⁹ of the same year, which concluded that “it would be an odd result” to apply the law of the MDL forum “simply because [the plaintiffs] took advantage of the direct-filing procedure—a procedure that provides benefits to all parties and preserves judicial resources.”¹⁴⁰

What to do? Treat cases direct-filed in the MDL as though they had been actually—and improperly—filed in that court, as in Vioxx, or determine where the case “would have been” filed had direct filing not been an option, as in Bausch & Lomb? If the latter—how to make that determination? Should the court make individual inquiries as to the possible appropriate judicial venues and the plaintiff’s plans, as in Xarelto? Such an inquiry is warranted under 28 U.S.C. section 1631, which provides in relevant part that:

Whenever a civil action is filed in a court . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court . . . in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.¹⁴¹

But this turns into an individual examination of each plaintiff’s claims and a decision between several potential venues. Transferred cases carry their original home court with them, making remand an easy, non-discretionary administrative action. Direct-filed cases needed an easy, non-discretionary administrative action as well.

Bradt, observing this growing issue in 2012—several years after the conflicting Vioxx and Bausch & Lomb decisions on the “origin” of direct-filed cases—proposed a solution that would eliminate guesswork and argument about plaintiffs’ intentions: have plaintiffs designate their home court in the short form complaint.¹⁴²

Bradt illustrated the problem with a summary of the contemporary Yasmin & Yaz¹⁴³In re Yasmin & Yaz(Drospirenone) Mktg., Sales Pracs. & Prods. Liab. Litig., No. 3:09-md-0211, 2011 WL 1375011 (S.D. Ill. Apr. 12, 2011). opinion on choice-of-law. Yaz was a birth control product liability MDL that allowed plaintiffs to file their short form complaints directly into the MDL.¹⁴⁴ When it came to deciding what state law should apply to various substantive issues, the court weighed concerns and determined that the state whose choice-of-law rules would apply to each individual plaintiff was the state where each plaintiff “purchased and was prescribed” Yaz or other similar drugs at issue.¹⁴⁵ As Bradt notes:

The court’s selection of the state of purchase seems somewhat arbitrary. The court could just as easily have chosen the state where the injury occurred, the plaintiff was domiciled, or ingested the drug. The court’s solution therefore fails in its goal of not changing the substantive rights of any party, is unconnected with the policy goals of Klaxon and Van Dusen, and creates a federal common law overlay on state choice-of-law rules. In sum, the court recognized the problem with its direct-filing stipulation, and attempted to solve it by imposing its own choice-of-law rules.

. . . . The court’s decision to apply the choice-of-law rules of the state where the drug was purchased could have far-reaching effects when the court decides dispositive motions or tries cases. . . . [T]he ruling falls on the other horn of the choice-of-law problem: changing the law potentially applicable to the case due to the mass-tort proceeding. Whatever one might think about forum shopping, to change the rules in the middle of the game is unfair—if a plaintiff files directly in an MDL, she at least ought to know what she is getting.¹⁴⁶

Having identified the problem—picking the home state for an individual plaintiff based on the judge’s own selection of factors that judge considers important, despite what that individual plaintiff may have chosen—Bradt then proposes a simple but elegant solution: have each plaintiff designate the home state that she would have filed in, but for the administrative expedient of direct filing.¹⁴⁷

Bradt’s suggestion was previewed a year earlier by the Federal Judicial Center’s own Pocket Guide for Transferee Judges for handling MDL products liability cases, which briefly noted that direct filing was an option and suggested to judges that “[i]f you enter a direct filing order, you may wish to order plaintiffs to designate ‘home’ districts for direct-filed cases, to facilitate determination of choice of law issues, as well as possible future transfer under 28 U.S.C. § 1404(a).”¹⁴⁸ The need for this designation and clarity was highlighted in 2014 in a Takata Airbags MDL¹⁴⁹ decision that noted the lack of any indication of home court for direct-filed cases and pointed out the problem this created: “[T]he Court notes the lack of consensus among federal courts concerning what constitutes the proper venue for direct-file cases in MDL proceedings.”¹⁵⁰

Significantly, the plaintiff’s designation of their home court is not limited to the site of injury. There are typically several legal and appropriate options where a plaintiff can file suit.¹⁵¹

As explained by Professor Antony L. Ryan, “[r]ather than define the proper venue with specificity, venue statutes typically let the plaintiff choose among a number of courts—albeit a limited number—in which venue is proper.”¹⁵² In federal court, the options are “generous”—

[T]he range of permissible venues for suits against individual defendants currently includes the judicial district where the defendant resides, any district where a substantial part of the events giving rise to the plaintiff’s claim occurred, and (if the action can be brought nowhere else) any district where the defendant is subject to personal jurisdiction.¹⁵³

Venue choices are limited in that the court of choice must be able to exercise jurisdiction over the matter, but that is almost never limited to a single location.¹⁵⁴

Such a designation properly reflects the choices and tactics employed in making a filing determination in the first place—“inasmuch as a judicial decision on a choice of law issue can be and often is outcome-determinative, the rules are of crucial tactical significance for all parties involved in product liability lawsuits.”¹⁵⁵ Plaintiffs must identify those forums in which venue and jurisdiction are proper. They “must then determine the choice of law rules utilized by those jurisdictions and what substantive law would control, under the applicable choice of law rules, for each potential forum.”¹⁵⁶

Is this much ado about nothing? Surely, a lawsuit filed in or remanded to the “wrong” court will inevitably face a conflict-of-law analysis such that the right law will eventually be applied? Not quite. Plaintiffs can opt for a defendant’s home state, or one of the defendants’ home states, among other options.¹⁵⁷ That choice matters because the home state selected will then apply its own system for resolving choice-of-law issues.¹⁵⁸ It is therefore important to honor a plaintiff’s home-state designation and not simply look at the place of injury, or the plaintiff’s domicile.

An (extremely) abbreviated explanation of the conflict-of-laws process is:

Plaintiff files suit in one of the locations in which jurisdiction is proper.
Both sides have an opportunity to argue about what the home-state conflict-of-laws rules would do in these circumstances. Because conflict-of-law rules vary by jurisdiction and may also change over time, this is neither a black-and-white issue nor a foregone conclusion.
The court uses and applies the home-state’s conflict-of-law rules to determine which state law applies over the dispute.¹⁵⁹

[C]hoice-of-law rules primarily do two things . . . . First, choice-of-law rules set the scope of state law. They determine who can claim rights under state law—what people, where, and in what circumstances. In this function, they are what I call “rules of scope.” Second, they resolve conflicts between state laws. They determine which of two conflicting rights under different states’ laws will prevail. In this function, they are what I call “rules of priority.”Kermit Roosevelt III, Choice of Law in Federal Courts: From Erie and Klaxon to CAFA and Shady Grove, 106 U. L. Rev. 1, 18 (2012) (footnotes omitted).

Typically, the conflict-of-law analysis, in which the court weighs factors like place of injury, competing state interests, takes place in step (3). But, significantly, the stage in which this analysis occurs is already set in step (1).

And as pointed out in step (2), there is no uniform understanding of “conflict-of-laws” or “choice-of-laws” analysis between states.¹⁶⁰ There are many different approaches used—Professor Symeon Symeonides’s long-standing annual survey, Choice of Law in American Courts,¹⁶¹ traces the various approaches used in every state as well as their slow evolution over the years and has divided states into the categories of “traditional,” “significant contacts,” “Restatement (Second),” “interest analysis,” “lex fori,” “better law,” and “combined modern,” with further subdivisions reflecting differences in how contract law and tort law disputes are treated.¹⁶² Importantly, Symeonides regularly updates his survey because these rules are in motion, slowly or suddenly changing within a single state as courts reconsider what is important when considering whether to apply their own state law or import the rules of another state.¹⁶³ Selection of a home-state venue is thus significant because a party is not only selecting a potential jury pool or nearness to witnesses; that party is also selecting that jurisdiction’s current choice-of-law rules.¹⁶⁴

For example, a plaintiff is injured in Kentucky and selects New Jersey as the site she would have filed suit in, which is an appropriate choice in her case because New Jersey was the home state of one defendant and both diversity jurisdiction and personal jurisdiction could be established in New Jersey. At remand, the suit should go “back” to New Jersey, which will then use its Restatement (Second) analysis to determine which law should control over her product liability claims. That New Jersey court may decide that Kentucky law should control, but it could also decide that New Jersey’s interests and relationship to the defective product trump those of Kentucky. An argument can at least be made.¹⁶⁵ A court that arbitrarily decides that the domicile of the plaintiff or the place of injury should control will substantially alter the case by sending the matter “back” to Kentucky upon the completion of pretrial proceedings in the MDL, Kentucky being a lex fori state that will likely apply the law of Kentucky. The argument that New Jersey’s laws should apply is lost without being made, despite the plaintiff’s clear choice to bring the case in New Jersey by designating that choice on her direct-filed, short form complaint.

Happily, since the publication of Bradt’s 2012 article, the MDL community has largely embraced the idea of designating a “place one would have filed but for this direct filing opportunity.”¹⁶⁶ Had the intent of Bradt’s idea also been adopted by the judges and lawyers interpreting these choices, many choice-of-law problems in direct filing would be avoided. Less happily, judicial understanding of the purpose of this designation, and adherence to this designation as meaningful, has not been as apparent in decisions from MDL judges.

First, there are numerous examples of how this designation is now made in short form complaints. In Figure 1 below, a December 2012 short form complaint appended to a pretrial order in a medical-device MDL requires designation of the “[d]istrict court and division in which venue would be proper absent direct filing.” This allows for the tactical determination by plaintiffs’ counsel while simultaneously allowing the MDL court to enjoy the advantages of allowing for direct filing.

Figure 1¹⁶⁷

A more recent example, but with similar aims, appears in the 2018 Taxotere MDL short form complaint, seen in Figure 2.

Figure 2¹⁶⁸

Adding even more specificity, the language in the venue portion of the Talcum Powder MDL proceeding in New Jersey specifically refers to remand and trial, as shown in Figure 3.

Figure 3¹⁶⁹

This language, referring specifically to “remand” and “trial,” clearly points the MDL judge to the court where this direct-filed case should go once pretrial proceedings are complete. While there is a chance that the attorney completing this form will designate an improper court lacking proper jurisdiction over the case itself, that is a concern for that attorney, not for the MDL judge. The word “might,” however, weakens the statement itself: “[W]here you might have otherwise filed.”¹⁷⁰ Perhaps judges ignoring designations like this and, as will be reviewed further below, consider the “might have filed” location no better than a suggestion that can be ignored or overruled. Then again, the Coloplast MDL example simply states the venue that “would be proper” absent direct filing.¹⁷¹ This does not precisely say that this is the place that the plaintiff would have filed but for the shortcut of direct filing, but it implies as much. And certainly, any of these examples could reasonably be read by the filing plaintiff to mean “this is the court where this matter will be sent for trial, if we get that far.” Yet, as we will see below, that is simply not the case. Despite the potential benefits of following this designation—a plaintiff’s counsel bears the burden of determining the proper home venue location and that remand orders are clearly and efficiently generated—MDL judges persist in ignoring it, looking instead to facts they deem relevant in selecting the home court for each matter.

Again, the MDL judge has legal jurisdiction only through pretrial proceedings. At the point that the court handling the consolidated matter has resolved all or most of the pretrial issues that can be resolved at this group level, the MDL judge loses jurisdiction, and everything goes home. The overarching goal of any MDL, as set forth in the JPML statute and emphasized by the Supreme Court in Lexecon,¹⁷² is remand.¹⁷³ The MDL court is an aggregator only for purposes of pretrial discovery and motion practice. Once the cases are ready to be tried, they must go back to their home state, or in the case of direct-filed cases, to whatever jurisdiction the court designates. The value of Bradt’s home court designation is immense here, because the administrative task of sending cases home is eased when that home is spelled out directly on the face of the short form petition and a clerk can easily find that designation to create appropriate remand orders.

Of course, remand may be the statutory endgame of any MDL, but it is often more of a theoretical than real outcome. Most product liability MDLs end in settlements or dismissals, often following the conclusion of a few bellwether trials that test the case before a jury or juries and draw larger implications from those results.¹⁷⁴ Most end this way, but not all. And because the MDL docket consists of almost half of all federal cases, even a remand of a small percentage of MDL matters still adds up to a large number of cases.¹⁷⁵ It is those cases to which the next two Parts will turn.

The JPML tracks its own statistics and publishes detailed reports on the outcome of MDL matters, including the number of matters initially consolidated and then remanded back home.¹⁷⁶ These reports prove that hundreds of cases consolidated in MDLs do end up remanded every year.¹⁷⁷ Moreover, those reports only track the cases that fell into the JPML’s transfer-and-consolidation practices to start. The thousands of cases that are filed directly into an MDL never pass through the JPML’s hands on their way to the MDL court, and thus their individual outcomes are extremely difficult to track en masse. Various private companies individually tote up filings in large MDLs, including those with direct-filing orders,¹⁷⁸ but the direct-filed cases that are “remanded” to a home court after direct filing—or, as seen in some cases discussed below, decided through motion by the MDL court which applies the choice-of-law rules for some designated home state—are more difficult to track on a case-by-case basis. Instead, this Article relies on database searches, as well as ongoing alerts looking for evidence of any direct-filed cases getting remanded, along with searches of Public Access to Court Electronic Records filings to determine the original designations made in these remanded cases. While the results discussed in Parts IV and V are more anecdotal than comprehensive, the Author made a diligent effort to find all cases with written orders designating a remand court for a direct-filed case for those years following publication of Bradt’s 2012 article.

There is another type of “choice” addressed in Parts IV and V as well: The MDL judge’s pre-remand analysis of choice-of-law issues during pretrial proceedings, like motions to dismiss claims contained within a master complaint adopted by the direct-filed cases. In such cases, the MDL judge needs to decide what law to apply when determining which claims survive or fall. As pointed out in the Valsartan MDL:

The short-form complaints directly filed in this MDL contained designations of venue that spanned the fifty states plus the District of Columbia and Puerto Rico. Therefore, because of this stipulation and order, for the actions directly filed in this MDL, we must conduct a choice of law analysis for each of the fifty states plus the District of Columbia and Puerto Rico. . . .

While this choice of law analysis may seem like a particularly laborious task, the answer is quite simple—the law of each plaintiffs’ home state should be applied.¹⁷⁹

The Valsartan MDL judge clearly used as a starting point the “designation of venue” stated in the “short-form complaints filed directly into this MDL.”¹⁸⁰ This ought to indicate that judge’s intent to also use those designations of venue as the place to which the individual direct-filed cases would be remanded, but no. The judge hedged on this, noting instead:

[F]or any actions directly filed in this MDL, the short-form complaint shall contain “a designation of venue, which will be the presumptive place of remand absent an agreement otherwise among the Parties or a determination by the Court that the place of remand should be elsewhere based upon good cause.”¹⁸¹

The “presumptive” hedge in the above is demonstrative of the fact that courts can and will use their judicial discretion to dispose of direct-filed cases where they see fit, making the choice to directly file a complaint potential risky. When the judge decides she knows best where a case should be sent after the MDL proceedings close, that decision then controls the next steps as to choice-of-law decisions and the state that will provide the local judge and local rules to make those choice-of-law decisions. Moreover, any administrative benefit from simply relying on the plaintiff’s designation is lost where courts give themselves the job of determining, for each direct-filed case, where the “place of remand should be . . . based upon good cause.”¹⁸² The plaintiffs have already said where the place of remand should be. For better or worse, their decision should stand and there is nothing gained in the MDL system by “fixing” a perceived “incorrect” designation.

IV. Judicial Regard for Plaintiff Forum Selection

In adherence to Bradt’s proposal, which offered a solution to the issue of determining a proper home venue for establishing the choice-of-law analysis starting point, there are cases that assiduously honor the plaintiffs’ designation on their direct-filed complaints and say so. For example, in Fresenius GranuFlo/NaturaLyte Dialysate Products Liability Litigation,¹⁸³ the court directly considered the plaintiffs’ stated “home forum” designation and explained why it was doing so:

The home forum designation of the direct filing plaintiffs is the best evidence I have of what these plaintiffs would have done absent direct filing. . . . I will therefore consider the forum that the direct filing plaintiffs designated on their Short Form Complaints as the originating home forum for the choice of law analysis.¹⁸⁴

A similar outcome was reached in Dobbs v. DePuy Orthopedics, Inc.,¹⁸⁵ in the Seventh Circuit.¹⁸⁶

This seems clear and obvious—the designation by plaintiffs is the best evidence of where to remand the suit, if necessary, and of where to consider the suit as having “come from” should the MDL court need to apply home-state law or home-state choice-of-law issues to a preliminary motion. It is, in fact, the only direct evidence of where the plaintiff would have filed, given the options available to plaintiffs under the rules of civil procedure. And yet, as seen in the next section, a large and growing number of judges has instead ignored that designation entirely, treating cases as though no such designation had been made and as though the remand jurisdiction is purely a matter of judicial discretion.

Of course, it is purely a matter of judicial discretion where to send direct-filed cases, and the direct filing mechanism is itself entirely a creation of judicial discretion, such that any subsequent outcomes are also necessarily based on individual judicial preferences.¹⁸⁷ But, as is further argued below, this ignores the usefulness of the home-state designation and completely overrides the plaintiffs’ choice in determining where to file their suits, substituting a judge’s preference for that of the plaintiffs’.

The unpublished opinion in Frady v. C. R. Bard, Inc.,¹⁸⁸ also reflects the Bradt-desired outcome when a clearly expressed desire by the plaintiff is found in the direct-filed short form complaint.¹⁸⁹ In that case, the plaintiff designated the District Court of Massachusetts as the place, according to the short form complaint, that the matter would be transferred upon remand—the “District Court and Division in which action is to be filed upon transfer from the MDL: District Court of Massachusetts.”¹⁹⁰ The complaint was well drafted in this sense, as the declaration of where the matter “is to be filed upon transfer” did not seem to have room for discretion built in.¹⁹¹ And, accordingly, the MDL court sent the matter to be filed in Massachusetts.

The assigned Massachusetts judge, when deciding that Massachusetts law applied, looked only to arguments made by both sides in their motion pleadings as well as the place of injury, and ignored the short form complaint entirely.¹⁹² At that point in the choice-of-law analysis, however, the matter was already “in” Massachusetts and that state’s rules for deciding conflicts of law applied. None of this was mentioned in the pleadings or the opinion, likely due to the agreement on all sides that only Massachusetts law needed to be considered, although the judge did cite to the Fresenius decision that discussed the short form as providing the “best evidence” of the plaintiff’s intent.¹⁹³

There are possibly dozens or even hundreds of cases like Frady, where an MDL court quietly and routinely remands cases to the courts designated by the plaintiffs in their short form complaints and no further choice-of-law disputes arise because the parties and court all agree that the law of a single state controls the matter. To the extent these cases exist, the home-state designation in the short form complaints is working as intended to streamline the process at the end of MDL proceedings while upholding the plaintiff’s choice in selecting a court where the non-MDL portion of events would occur.¹⁹⁴ It is difficult to locate these cases individually and tote up their numbers, because without a subsequent written opinion indicating their existence and nature as a matter formerly direct-filed within an MDL, these matters cannot be easily found in searches of legal databases.

One instance in which a case could be found occurred in Bernard v. Johnson & Johnson,¹⁹⁵ in which a direct-filed matter went to the court desired by plaintiffs and the judge mentioned that fact as the starting point in a choice-of-law analysis:

A review of the specific facts and procedural history illustrates that the Eastern District of Pennsylvania is the appropriate venue for this matter, and that its choice-of-law analysis should apply. Plaintiff’s Short Form Complaint states that she is a resident of Pennsylvania and that venue would be proper in the Eastern District of Pennsylvania had the action not been directly filed into the multi-district litigation. This action was transferred to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a).¹⁹⁶

The court then went on to explain that:

Pennsylvania choice-of-law principles apply to this case because this action ha[d] appropriately been transferred to the Eastern District of Pennsylvania for trial. A federal court sitting in diversity must apply the choice-of-law rules of the state in which the court sits to determine which state’s law applies. The fact that this action was directly filed into the MDL in United States District Court in the Southern District of West Virginia does not change this analysis.¹⁹⁷

Here is the benefit of the home-state designation provision realized: The Bernard plaintiff stated that she wanted the matter sent to the Eastern District of Pennsylvania and the MDL court did so. That Pennsylvania district court then realized there was a choice-of-law analysis required and that Pennsylvania’s own choice-of-law rules would be used to resolve the question. As the judge pointed out, the original filing of the matter in West Virginia should not and did not impact that process.¹⁹⁸

A similar outcome occurred in Jones v. Ethicon, Inc.,¹⁹⁹ in which Ms. Jones designated Georgia as the home state on her short form filed directly in the MDL in West Virginia, and the matter was sent to Georgia on remand. The Georgia court then conducted a choice-of-law analysis and found Georgia law would apply.²⁰⁰

There are MDL judges who, like the previously discussed judge in the Valsartan MDL, will sometimes—but not always—honor the plaintiff’s designation of home court. One example is a confusing order in the Bard IVC Filters MDL,²⁰¹ in which the judge noted when remanding a large number of direct-filed cases simultaneously that “the Court will transfer the cases listed on Schedule B to the districts identified in the short-form complaints or to the districts where the filters were implanted based on information provided in plaintiff profile forms.”²⁰² In that MDL, plaintiffs “were required to identify in the short-form complaint the district where venue would be proper absent direct filing in the MDL.”²⁰³ Moreover, a case management order entered by the court stated that “upon the MDL’s closure, each pending direct-filed case shall be transferred to the district identified in the short form complaint.”²⁰⁴

This language of “proper” venue and “shall be transferred” would appear to indicate that a plaintiff (and her counsel) could rely on the designation of a federal district court on the direct-filed short form complaint to be the court to which the matter would be sent. And yet, despite the language on the short form complaint and in the court’s own case management order, the MDL court only allowed for this designation as a possibility: “[T]he districts identified in the short form complaints or to the district where the filters were implanted.”²⁰⁵ There are apparently no real means of ensuring that an MDL judge will not substitute his or her own determination of proper home venue for that of a plaintiff in a direct-filed case.

Thus, there were very few examples identified in which a direct-filed short form complaint designated a specific federal judicial court, the MDL judge duly ordered that matter to be filed in accordance with that designation and without any caveats about retaining discretion to override that designation, and a written opinion noting those facts was later written, either by the MDL judge while transferring matters or the new judge who had been assigned the post-MDL case. Again, this is not an indication that such cases do not exist, but only an indication that they are difficult to track down—or possibly that the unremarkable remand occurs but without an explanatory opinion.

The U.S. Court of Appeals for the Eighth Circuit’s decision in Bair Hugger Forced Air Warming Devices²⁰⁶Bair Hugger Forced Air Warming Devices Prods. Liab. Litig., 999 F.3d 534 (8th Cir. 2021). provides an interesting example of an MDL case management order that tries both to embrace a certain level of regard for the direct-file plaintiff’s choice of forum and to provide a default rule that allows the MDL court to act as the home forum and apply its own choice-of-law rules to any disputes.²⁰⁷ In that case, a case management order:

establishe[d] that “in the event of a dispute between the parties concerning the applicable substantive law,” the court w[ould] apply Minnesota choice-of-law rules unless the plaintiff included “in the initial complaint: (1) current residence; (2) date and location of surgery plaintiff claims Bair Hugger was used; and (3) the appropriate venue where the action would have been filed if direct filing in [the District of Minnesota] were not available.”²⁰⁸

If the direct-filed plaintiff included those three pieces of information on the short form complaint, “then the choice-of-law rules from the appropriate venue shall apply.”²⁰⁹

In short, the default “home forum” was Minnesota unless plaintiffs named another “but for” court on their short form complaint.²¹⁰ This seems an almost unnecessary default setting, since it would apply only to plaintiffs who did not designate their preferred home forum in their short form complaint. Minnesota was a reasonable default, given that the defendant, 3M, was headquartered there and thus, the state could serve as an appropriate venue,²¹¹ but assigning a default that could contradict plaintiff venue choice in some hypothetical situation seems like an unnecessary step.²¹²

As the next section demonstrates, however, there are a large and growing number of cases in which judges do simply disregard, fail to account for, or even override specific designations by plaintiffs and then issue written opinions noting what they have done, making the contrary law easily available for judges encountering the issue for the first time. This growing body of cases is coalescing to form a new body of common law, one that allows for absolute judicial discretion in controlling the fate of the individual direct-filed complaints without input from the plaintiff who filed the suit.

V. Judicial Disregard of Home Venue Designations by A Plaintiff

In contrast to the few cases discussed above in Part IV, there are numerous (and steadily growing) examples of cases in which a remand decision is made without any consideration of the plaintiff’s designation of home venue.

One of the more significant of these is the Sanchez²¹³Sanchez v. Bos. Sci. Corp., No. 12-cv-05762, 2014 WL 202787 (S.D. W. Va. Jan. 17, 2014). case arising from the Boston Scientific Corp. Pelvic Repair System MDL.²¹⁴ This case is significant not due to any unusual or complex issue of law, but because it is the opinion broadly cited by subsequent courts for its declaration that the place of injury—and only the place of injury—is the only appropriate venue to send a direct-filed case.

In the Sanchez case, the plaintiff had designated a specific district and division in California for her case to go should it be remanded and did in fact get what she wanted.²¹⁵ The MDL judge, in hearing a motion for summary judgment as to the statute of limitations, applied California choice-of-law principles to his decision and then noted that, under this regime, California’s interests in the matter were paramount and that state’s law should be applied.²¹⁶ However, the judge did not make this decision based on where the plaintiff asked the case to go.²¹⁷ Instead, he went through citations to a series of pre-2012 decisions that relied on various factors to determine what was important in determining a proper venue.²¹⁸ Perhaps frustratingly, he also cited directly to Bradt’s article to explain the direct-filing process but then failed to apply the conclusion from Bradt’s article.²¹⁹ Finally, the Sanchez judge determined that “for cases that originate elsewhere and are directly filed into the MDL, [he would] follow the better-reasoned authority that applies the choice-of-law rules of the originating jurisdiction, which in our case is the state in which the plaintiff was implanted with the product.”²²⁰

This set an unfortunate precedent. The judge arrived at the “right” result because the plaintiff opted for California on her petition as the venue where she would have filed, but for the wrong reason—that California was the home forum (and thus source of the choice-of-law rules) because plaintiff had been implanted there and for no other reason. The choice-of-law rules of California were—or should have been—implicated by the plaintiff’s choice in the venue determination, and the place of implantation should not have been relevant to or considered by the court in its analysis. In fact, it could easily be imagined that a plaintiff would live in one state, travel to another state for a specific procedure, and then return home to experience the resulting injury in her home state. Hospitals that specialize in certain procedures or have good reputations for surgery may often attract out-of-state patients.²²¹ Yet one factor controls to the exclusion of all others when making the decision on a home state: the place of implantation.

Moreover, following entry of this decision, the MDL judge began to repeat it, citing his own Sanchez decision and applying it to subsequent cases in the MDLs he was handling.²²² By early 2021, over 200 cases cited to Sanchez—an unpublished decision resolving a single case’s pre-remand dispute involving California’s statute of limitations—for its proposition about “better-reasoned authority.”²²³ The situation is turning into one where Sanchez itself is that “better-reasoned authority” simply based on the number of times it is being used as a shortcut for that authority. And yet, in the Sanchez opinion itself, there is no citation to any authority that suggests that the place of implantation controls. Instead, there are two citations to pharmaceutical cases that use the place where a drug is prescribed and purchased as the appropriate venue.²²⁴ From that, there is now a steadily growing line of case law suggesting that the place of implantation is the sole factor for consideration in a medical-device MDL, which is a large fraction of current MDLs. This is now also occurring in multiple MDLs even where Sanchez is not cited as a source of the proposition.²²⁵

At one point over the course of a few days, the MDL judge in the Ethicon Pelvic Repair System MDL²²⁶ (the same judge handling the Boston Science MDL who wrote the Sanchez opinion) issued nearly two dozen individual opinions on a variety of motions, including motions to substitute deceased plaintiffs, motions for summary judgment, motions to strike experts, and so forth, all citing Sanchez for the proposition that the site of implantation had to be considered the plaintiff’s home court venue, with no regard for what that plaintiff had designated on their direct-filed short form complaint.²²⁷ From just late-October to early November of 2020, the Sanchez line was dramatically bolstered in a series of opinions copying identical language from each other and changing only plaintiff names and the place of implantation. These cases could have easily looked at the short form complaint, seen the plaintiff’s designation of home venue, and applied that state’s choice-of-law rules over these highly individualized matters. But that was never done. Instead, place of implantation of the contested product controlled to the exclusion of all other factors.

And there is a second line of cases developing that cite the case Belanger v. Ethicon, Inc.,²²⁸ coming out of the Ethicon Pelvic Repair System MDL, for the same principle: For direct-filed cases, “the choice of law that applies is the place where the plaintiff was implanted with the product.”²²⁹ Belanger v. Ethicon, Inc. itself cites Sanchez for its own holding, developing this line of case law even further, although subsequent cases citing to Belanger have dropped the reference to Sanchez.²³⁰

Another example appears in Chery v. C. R. Bard, Inc.²³¹No. 2:12-cv-8208, 2017 WL 1113306 (S.D. W. Va. Mar. 23, 2017). Another example from the same court, MDL, and judge, again citing Sanchez and ignoring the plaintiff’s own designation, appears in Allen v. C. R. Bard., No. 2:14-cv-12772, 2020 WL 205639, at *2 (S.D. W. Va. Jan. 13, 2020) (“Ms. Allen underwent implantation surgery in Texas. Thus, the choice-of-law principles of Texas guide the court’s choice-of-law analysis.”). Note that Ms. Allen designated Texas as her originating district as well as her residence and her place of implantation, so we again have a “correct” result as to the choice-of-law accompanied by language that focuses on plaintiff’s place of injury. Short Form Complaint at 2, 5, Allen, 2020 WL 205639; cf. Gray v. C. R. Bard Inc., No. 2:13-cv-19746, 2019 WL 6521972, at *2 (S.D. W. Va. Dec. 3, 2019) (relying on Sanchez to disregard plaintiff’s home venue designation); Smith v. Ethicon, Inc., No. 1:20CV212, 2020 WL 3256926, at *2 n.2 (M.D.N.C. June 16, 2020) (“In cases filed directly in the MDL, ‘the choice of law that applies is the place where the plaintiff was implanted with the product.’” (quoting Belanger, 2014 WL 346717, at *7)). The judge again ignored the short form designation and decided what the true home forum ought to have been:

If a plaintiff files her claim directly into the MDL in the Southern District of West Virginia, as the plaintiffs did here, I consult the choice-of-law rules of the state in which the implantation surgery took place—in this case, Florida.

For tort claims, Florida generally applies the Restatement (Second) of Conflict of Laws (Am. Law Inst. 1971). Under section 145 of the Restatement (Second) of Conflict of Laws, the court must apply the law of the state with the most significant relationship to the occurrence and the parties. Here, the plaintiff resides in Florida, and the product was implanted in Florida. The parties agree, as do I, that Florida law applies to this case. Accordingly, I will apply Florida law.²³²

This again reflects the problem found in Sanchez—Chery asked in her short form complaint for a Florida home court designation.²³³ The judge, independently and based on his own priorities, decided Florida was the appropriate home court. This pattern has repeated itself over and over again, leaving a trail of written opinions establishing a new body of law only applicable to direct-filed cases, but no reason for any party to appeal or dispute their outcome because the state sought by plaintiffs happens to be the state designated by judges.

In cases falling within both the Sanchez lines and the various Sanchez-like-branches,²³⁴ the matter in question is already in a post-MDL posture, and has already been filed as an individual products liability matter asserting diversity jurisdiction. The judicial explanations of the source of the choice-of-law rules seem particularly unnecessary at this juncture of the proceedings since, under basic diversity rules and the Klaxon/Van Dusen case law, the place they are already sitting in will control the choice-of-law analysis. For example, in May-Weirauch v. Ethicon, Inc.,²³⁵No. 1:20-cv-01205, 2020 WL 6946445 (C.D. Ill. Nov. 25, 2020). the matter had already been closed in the MDL and filed in the Central District of Illinois. Under normal circumstances, the court would have simply applied the choice-of-law rules of Illinois without any need for further justification, in line with Klaxon andVan Dusen. Yet, the May-Weinrauch opinion noted that “[t]his Court will apply the choice-of-law rules of the state where this case originated, and as Plaintiff’s TVT-O was implanted in Illinois and she is an Illinois resident, that is Illinois.”²³⁶ That same short form complaint designated the Central District of Illinois as the “District Court and Division in which venue would be proper absent direct filing,”²³⁷ yet the court ignored this clear direction from the plaintiff when determining for itself the proper home venue of the action.²³⁸ This step, adopted in case after case and in court after court, seems to steadily erode the confidence of courts in plaintiffs’ venue decisions, even when the case has already been filed in its new home venue after the MDL proceedings have ended.

Most of the cases discussed above, in which a plaintiff’s choice of home court is ignored, leads to no true problem in the case, as the plaintiff’s choice of home state is also the court’s choice of home state, albeit for different reasons. Yet inevitably, the implications of ignoring plaintiffs’ designations of home courts leads to cases in which MDL judges remand cases to the wrong states and courts entirely. For example, in Dickson v. Ethicon Inc.,²³⁹No. 2:15-cv-02800, 2020 WL 1492883 (S.D. W. Va. Mar. 27, 2020). the court took the inevitable next step from the Sanchez-type cases described above and forces a state not selected as the home forum by plaintiff to serve as the starting point for the conflict of law analysis:

If a plaintiff files her claim directly into the MDL in the Southern District of West Virginia, which is the case here, I consult the choice-of-law rules of the state in which the implantation surgery took place. In this case, Ms. Smith received the implantation surgery in Virginia. Thus, the choice-of-law principles of Virginia guide this court’s choice-of-law analysis.

. . . .

. . . Here, Ms. Smith underwent implantation of TVT in Virginia. It is immaterial under the choice of law standards that Ms. Smith was a West Virginia resident and received subsequent medical care and treatment in West Virginia. She may have felt the effects of the implantation of TVT in West Virginia, but Virginia is the place where the alleged wrongful act—the implantation—occurred. Therefore, I apply substantive law of Virginia.²⁴⁰

However, Ms. Smith purposefully designated her home state of West Virginia as the “but for” state in her directly filed short form complaint, not Virginia, as shown in Figure 4.

Figure 4²⁴¹

Ms. Smith wanted West Virginia to serve as the home forum, and thus expected that the choice-of-law rules of West Virginia would control which law was ultimately applied to her claims. The judge instead unilaterally decided that Virginia was in fact the starting point and, moreover, that under the Virginia choice-of-law analysis Virginia’s own laws applied.²⁴² This is precisely the outcome Bradt warned against when he concluded, “Whatever one might think about forum shopping, to change the rules in the middle of the game is unfair—if a plaintiff files directly in an MDL, she at least ought to know what she is getting.”²⁴³Bradt, supra note 6, at 812–13 (emphasis added). Given the nonstop citations to the Sanchez holding, and this very problematic outcome, it may be advisable for attorneys facing an MDL—particularly one in West Virginia with this judge—to consider trading the benefits of a short form, direct-file short-cut for the knowledge that a home-state designation is less easily ignored when there is an actual transferor court and the JPML controls remands as a matter of course.

Very similarly, in the C-Qur Hernia Mesh MDL²⁴⁴ in New Hampshire, a bellwether plaintiff designated Maine as his home venue.²⁴⁵ This made sense, given that the plaintiff, Mr. Newell, both lived in Maine and was implanted with the challenged product in Maine (see Figure 5).

Figure 5²⁴⁶

However, inexplicably, when hearing preliminary motions prior to remand, the MDL judge declared that New Hampshire was the home state for choice-of-law analysis purposes.²⁴⁷ It is possible that, in order for the case to be considered for a bellwether trial, the plaintiff and defendants all agreed to treat the case as though it arose in New Hampshire and ignored the designation of Maine in the short form, but if so, that agreement occurred outside of the written opinion.²⁴⁸

A strange outlier is the opinion in Wilson v. C.R. Bard, Inc.,²⁴⁹ which suggests that in the case of a remanded individual suit that had been directly filed into the MDL court (which did not have natural jurisdiction over the matter), that MDL court’s location now dictated the subsequent choice-of-law analysis.²⁵⁰ In Wilson, the plaintiffs directly filed suit using a short form complaint in an MDL proceeding in the Southern District of West Virginia. The plaintiffs stated in their complaint that the “District Court and Division in which action is to be filed upon transfer from the MDL” was the “Eastern District of North Carolina.”²⁵¹ After MDL proceedings were completed, the case was filed in the Eastern District of North Carolina, yet that North Carolina judge, addressing a motion for summary judgment, decided that West Virginia—the site of the MDL but no longer a court with any jurisdiction over this specific cases—controlled the choice-of-law analysis.²⁵² “Under West Virginia’s choice-of-law rules, actions brought in tort are governed by the rule of lex loci delicti, which says that ‘the law of the place of injury’ governs.”²⁵³ The North Carolina judge ignored the filing of the case in North Carolina and the designation of North Carolina as the home court in the complaint itself and instead treated the matter as a traditional 28 U.S.C. section 1404(a) transfer case.

The Wilson outcome flies in the face of post-Vioxx case law that stresses the unimportance of the MDL court’s home state for controlling legal issues, but this is perhaps an inevitable outcome of non-MDL courts confronting a “remanded” direct-filed case and, perhaps for the first time, delving into the conflicting case law that relies on any number of factors in deciding where the true home of the case resides.

As seen throughout this Part, there are numerous examples, both among cases still within an MDL and among cases sent to district courts for post-MDL proceedings, of courts insisting upon the plaintiff’s place-of-injury as the source of choice-of-law rules and thus the true home state of the diversity-jurisdiction-based suit. Although this discussion tends to arise in the context of which state’s rules will apply in a choice-of-law starting point, this has become less of a choice-of-law issue than an issue of judges substituting their choices for those of the plaintiffs, overriding the plaintiffs’ choice of forum (and perhaps their choice of both law and lawyer) and, typically, defaulting to the place of injury. A narrow and new rule of venue has developed and continues to build upon itself for direct-filed cases in MDL product liability actions: Regardless of where a plaintiff would have filed originally, that plaintiff’s case is “remanded” to the state of the MDL judge’s choosing. That state is likely to be the state where the product was implanted or ingested, and no other factor matters. Given the common law’s deference to precedent as a correct statement of law, this has become especially problematic in a small circle of MDL judges continually citing each other’s blunt decisions (or their own) about what matters in a home-court remand. As Part VI will note, this improper narrowing of plaintiffs’ options contradicts established principles about plaintiffs’ rights to control their suit and select a starting venue.

This is a recurring problem that is building its own quotable case law as precedent. Perhaps a stronger solution than Bradt’s original suggestion is now called for, to limit judicial interference with party choice of forum. One author has suggested, in the context of limiting “forum shopping” by MDL plaintiffs, that:

[E]very Case Management Order issued by an MDL court that allows direct filing should contain a mandatory provision requiring the plaintiff to declare a “home forum” upon filing. Second, Congress should amend 28 U.S.C. § 1407 to add a provision requiring that if a directly-filed case is transferred following pretrial proceedings, the choice-of-law rules of the state in which the transferee court sits are applicable, unless the plaintiff declared the MDL court as the home forum and the case could have originally been filed in the MDL court absent the Multidistrict Litigation.²⁵⁴

This solution would put teeth into the original proposal of adding a home court designation as the addition of a new statute would allow the JPML to enforce the rule as needed. This would also simplify matters, eliminating the need to litigate where a case “should have been” filed to remand it.

VI. New Rules and Consequences

Briefly retracing the steps taken here: We began with courts realizing that MDL judges need a system for determining what case law applies to cases transferred to and consolidated within MDLs. Such a system was developed through case law and determined that the MDL court is an administrative convenience, not a source of jurisdiction, and as such the choice-of-law rules of the original place of filing would control. As the MDL docket grew explosively, the need for additional streamlining systems, such as direct filing and short form complaints, also developed.

At this point, a second iteration of the original problem developed: If a case was directly filed into an MDL in a jurisdiction totally unrelated to the individual suit, how should the “original place of filing” be determined? Did the MDL court’s location now control? While a few outliers varied, case law seemed to agree that the MDL court’s location was not controlling. Instead, judges needed a system for easily determining where a case “would have” come from if direct filing did not exist. Bradt, echoed and bolstered by the Federal Judicial Center and others, suggested the addition of such a place in the direct-filed short form complaint, such that judges could easily refer to the short form and see which law controls.²⁵⁵

Since the 2011–2012 era, short form complaints (in MDLs where allowed) routinely include a question asking about the “but for” jurisdiction—the district court where the matter would be sent on remand or where it would have been filed if direct filing was not an option. The inclusion of this designation in short form complaints, however, has not ended the problem. Courts have now created a new system of analysis, ignoring that designation and instead routinely using the place of product ingestion or implantation as the “but for” site in every instance. Case law embracing this new rule is growing. Often this is the same place that plaintiffs say they would have filed had direct filing not been available—but not always.

For the MDL plaintiff and the plaintiff-lawyers’ bar, this new rule matters. As Bradt points out, “if a plaintiff files directly in an MDL, she at least ought to know what she is getting.”²⁵⁶ Plaintiffs and their counsel should understand that regardless of their selected home jurisdiction for remand, they will likely be sent instead to the state where their complained-of product was implanted or ingested. In many instances this is unlikely to change the outcome, as the plaintiff’s desired home state and the place of implantation or ingestion are one and the same, but it is nonetheless a consideration when weighing the potential benefits of utilizing direct filing. In contrast, for transferred matters that are not direct-filed, the JPML has declared that section 1407 transfers lack any discretion, so non-direct-filed cases will always go back to the original place of filing, regardless of the reasons for that choice in venue and whether it corresponds to the place of implantation or ingestion.²⁵⁷ “[O]nce the Section 1407 remand process is initiated, the statute unambiguously requires the Panel to return a transferred action to the district from whence it came. . . . [T]he Panel is without authority to redirect the remand to a different, non-originating court.”²⁵⁸ There is no statutory discretion as to where a transferred case must be remanded—the only destination allowed by section 1407(a) is the “district from which it was transferred.”²⁵⁹ Now, with the advent of the Sanchez rule and its large-scale adoption by both MDL and post-MDL judges, two different but otherwise identical cases in the same MDL, arising out of the same area and alleging the same injuries, could remand to two very different district courts if one is directly filed and the other is not.

If, for example, a medical-product MDL plaintiff from Kansas wants to file in New Jersey due to the medical product’s manufacture and design in that state and to enjoy the benefits of that state’s rules on liability and statutes of limitations—as she is currently permitted to do under the rules of civil procedure—she should not directly file into the MDL unless she also can claim that implantation or ingestion occurred in New Jersey. Otherwise, upon remand, she may find herself in a Kansas courthouse, having to convince a Kansas judge that under Kansas’s choice-of-law rules New Jersey law should nonetheless apply to her claims. Instead, this plaintiff should file in New Jersey and await or seek the JPML’s transfer of her case into the appropriate MDL.

Plaintiffs and plaintiffs’ attorneys must acknowledge and respond to this distinction between direct-filed and transferred-in MDL cases. But a larger question remains: Does this growing rule of law (i.e., the place of implantation controls the choice of venue) itself constitute a threat to established principles of civil procedure? Are judges building up a federal common law that says place of implantation controls venue, exclusively, in direct-filed cases? Decisions are piling up, then are being found and cited to by new judges, and thus are serving as established precedent.

As Kramer argues, for MDLs generally:

[I]t is unfair to change a party’s rights because lawyers and judges find it expedient to structure a lawsuit one way rather than another. Whatever rights I have if I litigate individually should be the same if, for reasons of convenience and efficiency, I am asked to litigate with others.²⁶⁰

Yet, as the direct-filed cases cited in Part V demonstrate, there is a distinct limitation to plaintiffs’ rights to select their own (otherwise appropriate) venue whenever those plaintiffs choose to avail themselves of direct filing. Kramer would likely protest this outcome and the accompanying new rule being developed for direct-filed cases, as he argues that “there is no substantive federal legislation for these cases. And it is unquestionably beyond the competence of federal courts to create such law with their limited common-lawmaking powers.”²⁶¹

There are certainly arguments that plaintiffs are engaging in gamesmanship and forum-shopping by selecting certain venues and that the use of diversity jurisdiction and venue rules is somehow inappropriate.²⁶² But if the rules of civil procedure allow for venue selection in a set variety of potential locations, it is difficult to argue that individual judges are empowered to disregard those rules. Moreover, forum selection is hardly a “plaintiffs-only” affair. Defendants may also vigorously attempt to argue for the application of law from states that cap or eliminate punitive damages or strict liability.²⁶³ These are fair and appropriate arguments for either party to make under the current regime that allows for multiple potential forums with subject-matter jurisdiction over a single dispute, and further provides for venue transfers and choice-of-law analyses.²⁶⁴

And, when compared to the actual rules of jurisdiction and venue, the place-of-injury rule determining the home court law for direct-filed cases for purposes of remand is wrong. The place of injury is not necessarily the place of “injury-causing conduct” and numerous places can legally be the proper situs of the resulting lawsuit.²⁶⁵ Plaintiff’s initial choice is itself reflective of underlying judicial “choices,” since plaintiffs are constrained to choose among locations in which jurisdiction can be asserted over the defendants, which already incorporates our legal system’s conclusions about “fair” locations for filing suit. For example, in a failure-to-warn suit, the warnings may have been designed in a corporate office in one state while ingestion of the product occurred in another. Both places are arguably fair and appropriate places to initiate a suit on that failure-to-warn claim. That judges in direct-filed cases have simply eliminated otherwise legal home courts as the starting point for the suit (and any subsequent choice-of-law analyses) flies in the face of the rules of civil procedure.

Perhaps this system could be considered fair if plaintiffs knew in advance that choosing to use the direct-filing system meant they were waiving their right to choose their remand venue. But where plaintiffs are instead encouraged to select a “but for” venue in their initiating document, there is clearly no such knowing waiver of rights.

As the Supreme Court recognized in Van Dusen, plaintiffs are permitted to “retain whatever advantages may flow from the state laws of the forum they have initially selected,” and that advantage is in fact entirely appropriate because “§ 1404(a) operates on the premise that the plaintiff has properly exercised his venue privilege.”²⁶⁶ Plaintiffs are the masters of their own complaints and have “the privilege of selecting the place of suit. We tend to take this privilege for granted because the plaintiff exercises it at the outset of every civil lawsuit. In choosing where to bring suit, the plaintiff shapes the course of the litigation before any judicial involvement.”²⁶⁷ Stripping plaintiffs of their “privilege of selecting the place of suit” changes the entire tenor of the litigation, starting with the choice-of-law analysis but potentially affecting other major aspects of the post-MDL litigation, both procedural and substantive. “When it comes to conducting a trial (and resolving other dispositive matters) plaintiffs [should] retain their ancient right to select the forum.”²⁶⁸

As forcefully argued by Antony Ryan in his defense of plaintiffs’ forum selection privileges:

The plaintiff’s-choice principle posits that the lawsuit belongs to the plaintiff—it is his chose in action, his property. Under this view, the plaintiff, as “master of his complaint,” should be able to select the forum in which to vindicate his right to relief. This is fundamentally a private-law view of civil litigation—one with deep roots in our common-law tradition. Forum shopping partakes just as much of that tradition as do other incidents of party autonomy, such as the plaintiff’s right to choose what causes of action to assert.²⁶⁹

The direct-filing-only rule that limits jurisdiction to a single, judicially selected location ignores this “common law tradition” and instead invalidates this practice of protecting the “ancient right” to pick a forum. Plaintiff has certainly not waived this right by directly filing her complaint in the MDL court or assented to the MDL judge’s later selection of a court, where the operative complaint for her individual cases—the short form—states plainly where the case should be sent upon completion of the MDL portion of the proceedings.

Another problem in this disregard for plaintiff’s stated option is that this act may also strip them of their counsel. Presumably, lawyers filing directly into an MDL but providing a remand or home court designation are licensed to practice in that designated court or at least have a plan for doing so should the matter be remanded. When a direct-filed talcum powder suit designating New Jersey as the “but for/home state” location with a Maryland plaintiff is remanded to Maryland rather than New Jersey, there could easily be two New Jersey attorneys on the pleadings with no license or ability (or desire) to practice in Maryland.²⁷⁰

The significance here is that there are dozens—nearly hundreds—of decisions already issued that have enshrined this limitation into law. Precedent, or “a consistent group of decisions that represent a model to be followed by subsequent decisions” eventually becomes part of the common law.²⁷¹ Generally, common law develops from “three separate but closely related steps in judicial reasoning: (1) recognition of a similarity between cases[;] (2) interpretation of a rule fashioned from the material facts of the first case; and (3) application of the rule to the second case.”²⁷² These are the steps plainly observable in the Sanchez line of cases: the pre-remand MDL matters are similar in needing a home-state-law designation; the Sanchez case provides a rule fashioned from its facts and interpretation of prior law; the Sanchez rule limiting venue to a single location is duly applied to a new plaintiff.

As noted by Professor Lawrence Lessig:

[P]eople get to say what the common law should mean, each after the other, in a temporally spaced dialogue of cases and jurisdictions. Unlike other lawmaking, what defines the process of the common law is small change, upon which much large change gets built; small understandings with which new understandings get made.²⁷³

Lessig was discussing the incremental building up of a new body of cyberlaw but the principle holds here as well: Where there is a new body of law developing, like direct-filed MDL cases actually surviving into the post-MDL stage and moving toward individual trials, there will necessarily be incremental movement toward the establishment of new or specific rules of law for those cases. For example, the concept of direct filing itself appears to have developed into an allowable practice, if not universally adopted, through decisions by judges to engage in the practice and later decisions by appellate courts that did not condemn it, despite the fact that the practice is unsupported by any MDL statute or rule of civil procedure.²⁷⁴

Now, however, the new rule developing in MDL cases does not involve expanding access but instead leads to ignoring or overriding plaintiff venue choices. The fact that such choices are now routinely sought, perhaps as a consequence of Bradt’s 2012 article, makes the subsequent disregard of this choice by courts deciding where a case must have originated notwithstanding the direct filing more confusing. There was a need to declare where these cases would have been filed, given the multiple options typically available, and there was a simple solution: A declaration on the short form itself. And yet, courts have instead developed a practice, by and large, of ignoring that specific part of the short form complaint.

The hostility observed in literature toward the concept of “forum-shopping” as unfair or inappropriate could potentially explain in part the willingness of judges to ignore plaintiffs’ designated forum.²⁷⁵ But discovering the “why” of this occurrence is not the purpose of this paper, and in any event, it is entirely unfair to assign motives, whether benign or malign, to judges who have genuinely surveyed the burgeoning body of law on a new issue, discerned a pattern, and applied it.²⁷⁶ That is, after all, how common law is built.

Instead, the conclusion is simply that there is a new rule limiting home court selection in direct-filed cases and this new rule is building in strength through its repeated applications in both MDL and post-MDL courts. A new rule of law specific to this subset of plaintiffs, which appears to be in contravention to rules controlling venue selection and subject-matter jurisdiction, as well as a plaintiff’s recognized right to file suit where she chooses within the allowable options, has been applied and cited over and over again. Parties to MDLs should be aware of this practice and prepare for the consequences when opting to directly file new cases into an MDL proceeding—by directly filing her case into an MDL, a plaintiff has essentially waived her right to assert her choice of jurisdiction. This practice appears nowhere on the face of any statute, rule, or guidance, and is contradicted by the language of most short forms, but is reflected by the dozens of opinions that strip direct-file plaintiffs of their choice of home jurisdiction.

Could another path forward exist? One solution to this problem would simply be to identify it and call attention to it early in the MDL process. PSC members or plaintiff attorneys should raise the issue at the earliest opportunity with the court, prior to acceptance of a short form complaint, to ensure that the MDL judge clearly states his or her understanding of the meaning of the home-court designation before plaintiffs start using the form for direct filing. If the judge states that he or she will make an independent determination of “where” the “correct” home court state is, regardless of the place designated on the form, this must be made clear—and frequently repeated—to all plaintiff counsel. In fact, should an MDL judge insist upon retaining this flexibility, the “home state line” on the short form complaint should be deleted. What is the point of such a designation if it is ultimately meaningless? It will induce belief in inattentive plaintiff lawyers in the court’s respect for their designation. Instead, the drafters of the short form complaint should expressly recognize that there will be a trade-off for direct filing, and the short form complaint itself should recognize, in writing on the form, that the filing of the short form acts as a waiver of home-state choice by the plaintiff. And if instead, as this Author believes to be most fair, the judge is willing to adopt a practice of honoring plaintiff’s chosen home forum as designated on the short form, this must become part of a formal written order at the earliest opportunity in the litigation.²⁷⁷

Direct filing offers many benefits. It is insufficient, however, for courts and leading counsel teams to adopt direct-filing forms as a matter of routine and then just as routinely ignore or contradict those few lines of allegation provided by each individual plaintiff.

Another solution could be calling for individual plaintiff attorneys to abandon direct filing and return to traditional file-and-transfer. Given the benefits of direct filing, however, it seems unlikely this will occur. Instead, then, MDL judges should consider one of the two pathways set out above: (1) unequivocally embrace the idea that the short form complaint constitutes a waiver of home-state choice and say so in plain writing for all parties to see and understand from the outset; or (2) unequivocally embrace the idea that plaintiff’s short form designation of a “but for” home-state venue will serve as the starting point for all choice-of-law disputes and the end point for all remands. The concepts of fairness and predictability for all parties, if applied to the short form complaint, should result in the application of the second pathway above.

Here is the ironic outcome of Bradt’s elegantly simple solution to the MDL choice-of-law problem: The solution may now need to evolve into a system in which either the plaintiff’s choice is actually honored and the choice-of-law issue is not collapsed into the choice-of-home-state issue by litigating this issue at the outset for acknowledgment in an initial case management order, or by creating an express waiver system by which the judge’s choice controls the home state and choice-of-law selections in MDL personal injury/product liability cases. All these complicated and potentially anti-plaintiff outcomes in the latter system could be avoided if the place of home-state designation was simply acknowledged consistently and across the board.

If we ignore the growing number of cases establishing this new “rule” of disregard for plaintiff home-state selection, there is no real, legal reason for courts to ignore plaintiff choice in designating a home state for remand. Judges may think that a plaintiff’s home-state designation is legally wrong but that is, as in all filed cases, the plaintiff’s problem. Unilaterally replacing that plaintiff’s choice with the place of injury benefits no party consistently and adds more work for the court. And yet, here we are. Perhaps if judges and practitioners realize that this is happening, over and over again, and recognize that it is complicating a system that was intended to simplify proceedings and adding risks without any clear benefits, perhaps that will be enough to end the practice.

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Direct Filing in Multidistrict Litigation: Limiting Venue Options and Choice of Law for Plaintiffs

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