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

Lauren E. Godshall
Volume 29, 
Issue 1

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.


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.128 U.S.C. § 1391(b). 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.2See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). 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.3See Larry Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. Rev. 547, 579 n.126 (1996). 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.4See Klaxon, 313 U.S. at 496 (holding that a federal court sitting in diversity applies the choice-of-law principles of the forum state to decide which state’s substantive law controls).

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.5MDL Cases Continue to Dominate the Federal Caseload, Rules4MDLs (Mar. 19, 2020), (“[T]he concentration of federal civil cases in multidistrict litigation (MDLs) continues a five-year trend, hovering at nearly half of the total federal civil caseload when adjusted for social security and non-death penalty prisoner cases.”).. 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.6See Andrew D. Bradt, The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation, 88 Notre Dame L. Rev. 759, 795–96 (2012); see also In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., No. 4:09-md-02046, 2011 WL 1232352, at *4 (S.D. Tex. Mar. 31, 2011) (quoting In re Vioxx Prods. Liab. Litig., 478 F. Supp. 2d 897, 904 (E.D. La. 2007)) (discussing benefits and drawbacks of direct filing).

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.7Bradt, supra note 6, at 763–64. 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.8See id. at 763–64. 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.9See id. Bradt posited that the issue could be resolved by having direct-file plaintiffs designate a proper home venue.10Id. at 765. 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.11See infra Part III. 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.12See infra Part V. 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.13See MDL Cases Continue to Dominate the Federal Caseload, supra note 5. In every year between 2012 and now, there have been around sixty to seventy pending separate product liability-based MDLs,14E.g., U.S. Jud. Panel on Multidistrict Litig., Calendar Year Statistics: January through December 2020, at 8 (2021), (noting that there were 61 pending products liability MDLs in 2020); U.S. Jud. Panel on Multidistrict Litig., Calendar Year Statistics of the United States Judicial Panel on Multidistrict Litigation: January through December 2012, at 12 (2013), (noting that there were 72 pending products liability MDLs in 2012). and many of the judges overseeing these actions have opted for direct filing.15See U.S. Jud. Panel on Multidistrict Litig., Multidistrict Litigation Terminated Through September 30, 2020, at 2 (2020), In a statistical analysis produced by the JPML, it was reported that 119,529 matters have been filed with the JPML and transferred pursuant to its rules, while slightly more—138,722 matters—have been directly filed into various MDLs since the practice started in 1968 through 2020. Id. 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.16See infra Part III. 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.17See infra Figure 3.

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.18See infra Part V.

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.19See, e.g., McNew v. C.R. Bard, Inc., No. 19-CV-195, 2020 WL 759299, at *1 (N.D. Tex. Feb. 14, 2020) (“The short-form complaint included a field where plaintiffs could identify the district and division where venue would have been proper absent the MDL.”). 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.20See infra Part V. 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.21Id. 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.22According to a statistical report released by the JPML, “[d]uring the twelve-month period ending September 30, 2019, 49,042 civil actions” were filed directly in or transferred into active MDLs. U.S. Jud. Panel on Multidistrict Litig., Statistical Analysis of Multidistrict Litigation Under 28 U.S.C. § 1407: Fiscal Year 2019, at 3 (2020), While it is difficult to find statistics on the total federal cases filed within the same time period, there were 94,206 total civil suits filed under diversity jurisdiction in 2019 total. Federal Judicial Caseload Statistics 2019, U.S. Cts., In 2019, cases filed into or transferred into an MDL accounted for forty-seven percent of pending civil cases, by one center’s analysis.23MDL Cases Continue to Dominate the Federal Caseload, supra note 5. Note that MDLs are distinct from class actions, which consolidate many cases into a single suit. An MDL is a consolidation, only for pretrial purposes, of many individual actions that nonetheless are filed individually and retain their individual character. Bradt,supra note 6, at 791–93 (“MDL’s primary difference from the class action is that the cases within it retain their individual identities. In other words, instead of the case being formally litigated by a representative on behalf of a group of absentee plaintiffs, the cases in an MDL keep their individual character . . . . [I]t is important to note the ways in which an MDL is different from a class action. Indeed, although MDL resembles in important ways a representative suit, it is not quite the same, because the cases retain their individual character. Unlike a class action, there are no absentee plaintiffs, and the cases are separately filed and prosecuted. And there will not be a single jury trial to decide the entirety of the case. As a result, the MDL has something of a hybrid character—not quite as aggregated as a class action, but consolidated to a significant degree.” (footnote omitted)). A large number of these MDLs involve product liability matters,24U.S. Jud. Panel on Multidistrict Litigation, Calendar Year Statistics: January Through December 2019 (2020), and those product liability MDLs can involve thousands of individual cases asserting the same or similar claims against the same defendant.25For example, over 96,000 cases were filed into In re Roundup Products Liability Litigation, see Hannah Albarazi, Roundup MDL Judge Prods Monsanto to Settle Cases Earlier, Law360 (Aug. 18, 2021, 9:47 PM),, and over 250,000 were filed into the In re 3M Combat Arms Earplug Products Liability Litigation, see Carron Nicks, 3M Company’s Military Earplug Multi-District Litigation, Nat’l L. Rev. (Sept. 21, 2021),

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.26See James M. Wood, The Judicial Coordination of Drug and Device Litigation: A Review and Critique, 54 Food & Drug L.J. 325, 332–35 (1999) (discussing common issues and locations in JPML filings). Location of the proposed MDL court is sometimes argued in motions, along with factors like access to airports and number of hotel rooms. See Andrew Barron, Abandoning Centrality: Multidistrict Litigation After COVID-19, Calif. L. Rev. Blog (Nov. 2020), However, centrality of an MDL court (i.e., being in the geographic center of the country) seems to be diminishing in importance as a factor in selecting MDL courts. Id.

MDL is governed by a single federal statute, which establishes the JPML.2728 U.S.C. § 1407. The JPML is authorized by 28 U.S.C. section 1407, which creates the panel and authorizes it to review cases for potential consolidation.28Id. 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.29Id. § 1407(a); see also Wood, supra note 26, at 332–33. As the Southern District of Ohio explained in its website Introduction for In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Products Liability Litigation:

This Multidistrict Litigation (“MDL”) was created by Order of the United States Judicial Panel on Multidistrict Litigation (“JPML”) on August 2, 2018. In its August 2, 2018 Order, the JPML found that the actions in this MDL “involve common questions of fact, and that centralization in the Southern District of Ohio will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” The JPML continued that, “[a]ll of the actions share common factual questions arising out of allegations that defects in defendants’ polypropylene hernia mesh products can lead to complications when implanted in patients, including adhesions, damage to organs, inflammatory and allergic responses, foreign body.”

Introduction – MDL 2846, U.S. Dist. Ct. S. Dist. of Ohio,
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.30See Lexecon Inc. v. U.S. Dist. Ct. for Dist. of Ariz., No. 95-70380, 1995 WL 432395, at *2 (9th Cir. July 21, 1995) (Kozinski, J., dissenting) (“Section 1407(a) authorizes the Multidistrict Panel to transfer cases for pretrial proceedings; after those proceedings are completed, and before trial, ‘[e]ach action so transferred shall be remanded by the panel.’ It’s hard to imagine a clearer statutory command . . . .” (emphasis omitted)). 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.3128 U.S.C. § 1407(a) (“Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated . . . .” (emphasis added)).

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.32David Goguen, Multidistrict Litigation (MDL) for Product Liability Cases, Nolo,“On the other hand, publicity surrounding an MDL can prompt new plaintiffs to file lawsuits; not a good thing for defendants.”). 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“A case may be transferred to a transferee court subsequent to a Transfer Order in a Conditional Transfer Order. The CTO is ‘conditional’ for seven days; at the expiration of that time, absent any objection, the CTO is made final and the case is transferred to a proceeding.” Catherine R. Borden, Emery G. Lee III & Margaret S. Williams, Centripetal Forces: Multidistrict Litigation and Its Parts, 75 La. L. Rev. 425, 431 (2014); see also Transfer Order at 1–2, In re Taxotere (Docetaxel) Prods. Liab. Litig., MDL No. 2740 (J.P.M.L. Sep. 30, 2020).

At this point, there are no formal rules directing how the transferee judge now in-charge of the MDL must handle all pretrial proceedings.34The lack of formal rules is another way MDLs are distinct from class action procedures, which are more formally regulated. See Bradt, supra note 6, at 791–92 (noting that due process concerns common to class actions “may be even more pronounced [in MDLs] since the MDL structure has fewer formal procedural protections than the class action”). There are, however, typical practices and recommendations from the Federal Judicial Center on how best to manage massive MDL dockets.35See Manual For Complex Litigation (Fourth) (2004) [hereinafter Manual for Complex Litigation]; Margaret S. Williams, Jason A. Cantone & Emery G. Lee III, Fed. Jud. Ctr. & Jud. Panel on Multidistrict Litig., Plaintiff Fact Sheets in Multidistrict Litigation Proceedings: A Guide for Transferee Judges (2019). 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.36See David F. Herr, Multidistrict Litigation Manual § 9:15 (2019); John T. McDermott, The Transferee Judge—The Unsung Hero of Multidistrict Litigation, 35 Mont. L. Rev. 15, 16–19 (1974). The PSC is often divided into topical committees like “Law and Briefing,” “Discovery and Experts,” “Settlement,” and so forth.37See, e.g., Pretrial Order No. 7 at 1–2, In re Xarelto (Rivaroxaban) Prods. Liab. Litig., No. 2:14-md-02592 (E.D. La. Feb. 9, 2015) (appointing the PSC). There is typically a requirement to buy in to the PSC if appointed. See Manual for Complex Litigation, supra note 35, §§ 14.211, .14.215. This is called the “Common Benefit Fund.” See id. § 14.211. The PSC members also typically track the time they spend on PSC-related matters and submit statements of work to the court or Special Master, or a PSC committee designated to handle billing. And if the MDL resolves successfully, the hours billed will be repaid in keeping with what is available. See Pretrial Order No. 8 at 1–4, In re Xarelto, No. 2:14-md-02592 (E.D. La. Feb. 13, 2015) (“Establishing Standards and Procedure for Counsel Seeking Reimbursement for Common Benefits and Fees”); see also Manual for Complex Litigation, supra note 35, §§ 14.122, 14.211, 14.215–.216, 22.61. 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,38Pretrial Order No. 20 at 2, In re Taxotere, No. 2:16-md-02740 (E.D. La. Feb. 24, 2017) (“Appointment Kenneth W. DeJean as Special Master”). or direct settlement allocations in the Deepwater Horizon MDL.39Order at 1, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mex., on Apr. 20, 2010, No. 2:10-md-02179 (E.D. La. May 20, 2020) (“Approving Motion for Approval of Final Distribution of the Punitive Damages Portion of the Halliburton Energy Services, Inc. and Transocean Ltd. Settlement Agreements”)..

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.40See, e.g., Master Long Form Complaint, In re Davol Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Devices Liab. Litig., No. 2:18-md-02846 (S.D. Ohio Dec. 4, 2018). 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.).41For example, the “Master Short Form Complaint” in the 3M Earplugs MDL is available online as a fillable form. Master Short Form Complaint and Jury Trial Demand,; cf. Pretrial Order No. 17: Order Governing Adoption of Master Complaint and Short Form Complaint for Filed Cases, In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 3:19-md-02885 (N.D. Fla. Oct. 16, 2019) (adopting the master short form complaint for the 3M Earplugs MDL). 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,42Some MDL judges call Master Petitions administrative devices and do not consider them a valid pleading that can be targeted in motion practice. E.g., In re Vioxx Prods. Liab. Litig., 239 F.R.D. 450, 454 (E.D. La. 2006); In re Nuvaring Prods. Liab. Litig., No. 4:08MD1964, 2009 WL 2425391, at *2 (E.D. Mo. Aug. 6, 2009). This issue has been targeted by groups seeking to formalize MDL practice rules, as discussed here:

FRCP 7 does not formally recognize or regulate master complaints or answers despite their widespread use in MDL proceedings. In the absence of formal FRCP acknowledgement, some courts have declined to treat master complaints/answers as pleadings. This is particularly troublesome when it comes to deciding pretrial motions under, for example, FRCPs 8, 9, and 12. These rules apply specifically to pleadings, and MDL litigants are denied some of the traditional protections of the FRCP when courts decline to recognize master complaints/answers as pleadings. Consequently, FRCP 7 should be amended to formally recognize master complaints and answers as pleadings.

Hannah R. Anderson & Andrew G. Jackson, The Case for MDL Reform: Addressing the Flaws in a Critical System,Minn. St. Bar Ass’n: Bench & Bar of Minn.,
and some judges require every plaintiff to file an individual and complete petition, like in the Zostavax MDL.43See In re Zostavax (Zoster Vaccine Live) Prods. Liab. Litig., No. 2:18-md-02848, 2019 WL 2137427, at *1 (E.D. Pa. May 2, 2019). 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.”44Id. 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.45Direct-filed cases are filed under the court’s section 1331 diversity jurisdiction, given the broad tort-liability based nature of these kinds of claims. Bradt, supra note 6, at 795–96. Regardless, direct filing is a commonly used mechanism. For example, in the Xarelto MDL46In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 65 F. Supp. 3d 1402 (J.P.M.L. 2016). 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.47Pre-Trial Order No. 9 at 1, In re Xarelto, No. 2:14-md-02592 (E.D. La. Mar. 24, 2015).

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.48This presents additional administrative issues for lawyers filing in new states in which they are not licensed, such as creating a temporary or limited CM/ECF license for MDL lawyers. See, e.g., Obtaining a CM/ECF Filing Login and Password, U.S. Dist. Ct. N. Dist. of Ga., (explaining that there is a special proceeding for attorneys to file in the MDL and providing a link to request CM/ECF access in the Ethicon Herniamesh MDL proceeding before Judge Richard Story).

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.49Bradt, supra note 6, at 796. 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,50The Federal Judicial Center has an informative pocket guide on the selection of bellwethers. Melissa J. Whitney, Fed. Jud. Ctr. & Jud. Panel on Multidistrict Litig., Bellwether Trials in MDL Proceedings: A Guide for Transferee Judges (2019). Recall that the governing statute allows the MDL transferee court to handle all pretrial proceedings. Id. at 1. Once it is time for trial, the MDL transferee court no longer has jurisdiction over the individual suits. Id. at 3. However, it is an established practice that the MDL judge holds a few “test case[s],” termed “bellwether trial[s].” Id. Once a few bellwether trials are complete, the idea is that both sides will be able to determine the value, if any, of the case and may be able to extrapolate a general, MDL-wide settlement. See id. at 3–4.

The MDL transferee judge may ask for Lexecon waivers—waivers of venue and personal jurisdiction objections by defendants. See id. at 11–15. These waivers, named after a Supreme Court decision holding that an MDL court has no statutory authority to try cases that did not originate in the transferee judge’s district, allow the transferee judge to hold a trial for transferred-in cases. See id. at 11. If the defendants agree to a Lexecon waiver, then potentially any case within the MDL is eligible to be a bellwether-trial case. See id. at 12–13 (quoting Case Management Order No. 11, In re Bard IVC Filters Prods. Liab. Litig., No. 2:15-md-02641 (D. Ariz. May 5, 2016)). If, however, the defendants refuse to waive their venue and jurisdiction objections, then the only potential bellwether cases are those that arose in the district where the transferee judge sits—or can sit by agreement. For instance, in the Taxotere MDL proceedings in the Eastern District of Louisiana, the defendants would not waive their Lexecon objections and thus the bellwether pool consisted of residents within the Eastern District of Louisiana, as well as residents of other districts in Louisiana and Mississippi that the Taxotere MDL judge could travel to and hold trials in by agreements with the judges in those districts. See Case Management Order No. 8 at 1–2, In re Taxotere (Docetaxel) Prods. Liab. Litig., No. 2:16-md-02740 (E.D. La. Oct. 11, 2017).

Another issue is how many bellwether plaintiffs should be tried or worked up for potential trial. There are a great number of systems for this. Some judges tell each side to select some number of bellwether pool plaintiffs, and those plaintiffs are then each worked up and individually deposed, with individual expert witnesses and so forth. Whitney, supra note 50, at 28. Then there is a trial selection, which can involve allowing “strikes” by each party of a certain number of bellwether pool members until only a few are left or a random selection by the court itself, or anything else. Id. The entire bellwether pool can also be randomly selected, and there can be separate pools of potential trial plaintiffs for each planned trial, or a row of trials planned for a single pool of plaintiffs. Id. There are no limits to the MDL courts’ options here. See Manual for Complex Litigation, supra note 35, § 20.132.
and access to online document repositories and plaintiff fact sheet databases, as well as other time-sensitive issues.51See Manual for Complex Litigation, supra note 35,§ 20.313. 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.52From The Shortest Distance:

Ultimately, direct filing creates numerous efficiencies for all parties. The JPML is not burdened with transferring cases to and from home districts. Home district judges and clerks’ offices need not undertake administrative burdens associated with cases destined for transfer and which will likely not return. The MDL court retains complete control over a greater portion of the overall pool of cases for trial and facilitation of global settlement, which is likely why MDL judges encourage the practice. These benefits extend to the parties as well, particularly defendants and firms representing a significant number of plaintiffs. Lodging all of the cases in a single court in the first instance more seamlessly aggregates the litigation.

Bradt, supra note 6, at 796. This reasoning is reflected by the decision in Interstate Service Provider, Inc. v. Jordan, in which a court declined to stay proceedings despite a pending motion to transfer to an MDL: “The orders, pretrial proceedings, and jurisdiction of a transferor court are unaffected when a party petitions the JPML for transfer and consolidation.” No. 4:21-cv-267, 2021 WL 2355384, at *2 (E.D. Tex. June 9, 2021) (citing R. Proc. U.S. Jud. Panel on Multidistrict Litig. 2.1(d); Morales v. Am. Home Prods. Corp., 214 F. Supp. 2d 723, 725 (S.D. Tex. 2002)). Similarly, in Rivers v. Walt Disney Co., the court notes: “In other words, a district judge should not automatically stay discovery, postpone rulings on pending motions, or generally suspend further rulings upon a parties’ motion to the MDL Panel for transfer and consolidation.980 F. Supp. 1358, 1360 (C.D. Cal. 1997). Direct filing would have avoided these outcomes.
Where the direct-file option is available, it tends to become the favored procedure.53See U.S. Jud. Panel on Multidistrict Litig., supra note 22, at 3.

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.54See Eldon E. Fallon, Jeremy T. Grabill & Robert Pitard Wynne, Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323, 2355–60 (2008). 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.55Id. at 2355–56 (footnotes omitted).

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 MDL56In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., 316 F. Supp. 3d 1380 (J.P.M.L. 2018). 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.57Master Long Form Complaint at 2–3, In re C.R. Bard Hernia Mesh, No. 2:18-md-02846 (S.D. Ohio Dec. 4, 2018). 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.58This is not the first expansion of jurisdiction undertaken by MDL judges. For a brief time, MDL judges would also hold trials for individual cases—often test cases or bellwether trials—despite not having trial jurisdiction over the matters tried. This was stopped by the Supreme Court decision in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach. 523 U.S. 26, 34–36 (1998). The Supreme Court ruled unanimously that the text of section 1407(a), which states that the cases “shall be remanded,” does not admit of any judicial discretion to then try the matters consolidated in the MDL. Id. at 35 (quoting 28 U.S.C. § 1407(a)). Hence the term Lexecon waiver, which parties can agree to if they want a case tried by the MDL judge despite that judge’s lack of personal jurisdiction over the parties. A more typical practice is now to select bellwether trial plaintiffs from those plaintiffs over whom the court can exercise jurisdiction. See, e.g., Case Management Order No. 3 at 1, In re Taxotere (Docetaxel) Prods. Liab. Litig., No. 2:16-md-02740 (E.D. La. July 21, 2017) (stating that the original set of bellwether plaintiffs were all from the Eastern District of Louisiana). 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,59See In re Zostavax (Zoster Vaccine Live) Prods. Liab. Litig., No. 2:18-md-02848, 2019 WL 2137427, at *1 (E.D. Pa. May 2, 2019). 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.60See James M. Beck, MDL Direct Filing & Personal Jurisdiction, Drug & Device L. (Oct. 16, 2017), James Beck reports at length on the problems inherent in allowing direct filing to develop entirely outside of the rules of civil procedure and concludes that the practice is inherently unfair to defendants. Id.(“[W]e believe that there is no constitutional basis for personal jurisdiction in direct-filed MDL cases, and defendants should not do plaintiffs any favors by voluntarily agreeing to such procedures.”).

In any event, the numbers do not lie: Where direct filing is available, plaintiffs overwhelmingly choose to file directly.61See U.S. Jud. Panel on Multidistrict Litig., supra note 22, at 5. 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.62See id. 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 act or an instance of sending something (such as a case, claim, or person) back for further action.” Remand, Black’s Law Dictionary (11th ed. 2019). 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.”64Kramer, supra note 3, at 579. 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.66See id. at 496. 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.67Id. at 494. New York had a rule mandating the addition of prejudgment interest on an award.68Id. at 495. Delaware apparently did not.69Seeid. at 496. 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.70See id. at 494–95.

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.71Klaxon, 313 U.S. at 486–87. 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.”72Bradt, supranote 6, at 780; see also Kramer, supra note 3, at 571.

This remained the consistent policy of the Supreme Court, as expressed years later in Van Dusen v. Barrack,73376 U.S. 612 (1964). which involved a multi-state plane crash with two different procedural rules on how to bring wrongful death cases.74Id. at 613–14. 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.75Id. at 614. 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.76Id. at 636, 639 (“[W]here the defendants seek transfer, the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue.”). The Van Dusen opinion is notable for its recognition of “plaintiff’s venue privilege.”77Id. at 633–35. 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.”78Id. at 633–34; see alsoAntony L. Ryan, Principles of Forum Selection, 103 W. Va. L. Rev. 167, 197 (2000).

Klaxon and Van Dusen pre-date the passage of the MDL statute in 196879See Overview of Panel, U.S. Jud. Panel on Multidistrict Litig., (“The United States Judicial Panel on Multidistrict Litigation, known informally as the MDL Panel, was created by an Act of Congress in 1968—28 U.S.C. §1407.”). 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.”81Id. at 523. 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.”82Id. at 526; accord Van Dusen, 376 U.S. at 639 (“[W]here the defendants seek transfer, the transferee district court must be obligated to apply the state law that would have been applied if there had been no change of venue.”). 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.83See Bradt, supra note 6, at 762; see also Federal Judicial Caseload Statistics 2020, U.S. Cts., (noting that in 2020, “[p]ersonal injury/product liability filings surged 97 percent (up 45,523 cases) as cases involving other personal injury/product liability climbed by 55,121 filings (up 548 percent). Most were part of multidistrict litigation filed in the Northern District of Florida that alleged injuries sustained while using 3M Combat Arms earplugs”). 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.84A Reuters Legal article reported that “[l]awyers and referral services have from January to May spent $67 million on mass tort TV advertising, up 6.6% from the same time last year, when law firms aired fewer spots that cost more money, according to data analyzed by X Ante.” Nate Raymond, Mass Tort TV Advertising Jumps Amid Coronavirus Pandemic, Reuters Legal (July 6, 2020, 11:06 AM),

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.85In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996) (citation omitted).

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.86In re Air Disaster at Ramstein Air Base, Ger., on 8/29/90, 81 F.3d 570, 576 (5th Cir.) (“Where a transferee court presides over several diversity actions consolidated under the multidistrict rules, the choice of law rules of each jurisdiction in which the transferred actions were originally filed must be applied.”), amended by Perez v. Lockheed Corp., 88 F.3d 340 (5th Cir. 1996); see also Carlson v. Bos. Sci. Corp., No. 2:13-cv-05475, 2015 WL 1956354, at *2 (S.D. W. Va. Apr. 29, 2015); In re Digitek Prods. Liab. Litig., No. 2:08-md-01968, 2010 WL 2102330, at *7 (S.D. W. Va. May 25, 2010); In re Air Crash Disaster near Chi., Ill. on May 25, 1979, 644 F.2d 594, 610 (7th Cir. 1981). 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.”87Van Dusen, 376 U.S. at 639 (“A change of venue under § 1404(a) generally should be, with respect to state law, but a change of courtrooms.”). 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.”88Wahl v. Gen. Elec. Co., 786 F.3d 491, 496 (6th Cir. 2015); see also id. at 498 (“If plaintiffs could avail themselves of the law of the MDL-court forum, every plaintiff in an MDL case would be able to choose the law of a state that is not an appropriate venue.”). 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.89Kramer, supra note 3, at 549.

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. 90Barbara J. Rothstein & Catherine R. Borden, Fed. Jud. Ctr. & Jud. Panel on Multidistrict Litig., Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges 30 (2011). The pocket guide for transferee judges in products liability cases goes on to suggest ways to handle the potentially overwhelming task of analyzing up to 50 states’ laws: If the choice of law and subsequent analysis show little relevant difference in the governing law, or that the law of only a few jurisdictions applies, you might address these differences by creating subclasses or by other appropriate grouping of claims. When different state laws apply, you might ask the parties to research the feasibility of organizing cases based on the similarity of the applicable laws. If the cases are consolidated for pretrial purposes, lead counsel can file “core” briefs on dispositive motions based on the most widely applicable or otherwise most significant state substantive law. Variations in state laws can be addressed separately through supplemental briefs, which can be prepared by lawyers whose clients assert that a different law applies to some or all of their cases. Alternatively, you may rule on a motion in cases under one state’s law and issue an order to show cause why the ruling should not apply to the other cases. Id. (footnote omitted).

This was echoed by the judge handling the Valsartan MDL:91In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig., No. 1:19-md-02875, 2021 WL 307486 (D.N.J. Jan. 29, 2021).

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.92Id. at *8 (first citingParrott v. Coopers & Lybrand, L.L.P., 741 N.E.2d 506, 508 (N.Y. 2000) (stating that in a claim of negligent misrepresentation a plaintiff must show “either actual privity of contract between the parties or a relationship so close as to approach that of privity”); and then citing Averitt v. PriceWaterhouseCoopers L.L.P., 89 S.W.3d 330, 335 (Tex. App. 2002) (stating that privity is not required to hold an accountant liable to a third party arising from the accountant’s misrepresentations)).

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.93See Katherine Florey, Big Conflicts Little Conflicts, 47 Ariz. St. L.J. 683, 688–89, 754(2015). 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”:94Id. at 688.

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.95Id. at 687–88 (emphasis omitted) (footnotes omitted).

Florey critically reviewed a choice-of-law struggle in a multi-state airplane crash suit involving potential punitive damages.96Id. at 739–40. 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.97Id. at 740–41. Kramer also casts doubt on the abilities of courts to handle complex, multi-state analyses in complex cases. Kramer, supra note 3, at 552 (“Under Klaxon Co. v. Stentor Electric Manufacturing Co., a federal court has no power to innovate and must apply the choice-of-law rules of the state in which it sits. Where claims have been transferred from other districts—at least where the transfer is based on 28 U.S.C. § 1404 or § 1407, as is usually the case—Van Dusen v. Barrack further constrains the court by requiring it to apply the whole law of the transferor court, including its choice-of-law rules. This being so, it is remarkable how often courts adjudicating mass actions nevertheless find that one law applies to all the claims or to each issue. The most revealing examples are in MDLs under 28 U.S.C. § 1407.”). Conversely, the judge handling the Valsartan MDL considered the required fifty-two-jurisdiction analysis “laborious” but straightforward and necessary:

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. This is so . . . because the individual actions, whether transferred to or directly filed in the MDL, span all 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.

In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig., No. 1:19-md-02875, 2021 WL 307486, at *8 (D.N.J. Jan. 29, 2021).

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.98See, e.g., In re Bos. Sci. Corp., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-2326, 2015 WL 1637722, at *1 (S.D. W. Va. Apr. 13, 2015) (“In an effort to efficiently and effectively manage this massive MDL, I decided to conduct pretrial discovery and motions practice on an individualized basis so that once a case is trial-ready (that is, after the court has ruled on all Daubert motions, summary judgment motions, and motions in limine, among other things), it can then be promptly transferred or remanded to the appropriate district for trial.”). MDL courts also often hear preliminary motions to dismiss that will turn on state-law analysis.99See, e.g., In re JUUL Labs, Inc., Mktg. Sales Prac. & Prods. Liab. Litig., No. 3:19-md-02913, 2021 WL 3112460, at *1, *8–11 (N.D. Cal. July 22, 2021) (conducting a multi-state analysis when addressing motions to dismiss individual plaintiffs).

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.100For a detailed discussion of the plaintiff’s choice of forum and the “master of the case” concept, see Ryan, supra note 78, at 168–69. 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.,101No. 13-cv-2388, 2020 WL 5369045 (E.D.N.Y. Sept. 8, 2020). 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.102Id. at *2 (“Because this action was filed in New Jersey, I apply New Jersey’s choice-of-law rules.”). 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.”103Id. 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.104Id. at *5. 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.105Id. The same analysis applies in other cases where there is no direct filing. See, e.g., In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., No. 2:18-md-02846, 2020 WL 5223363, at *6 (S.D. Ohio Sept. 1, 2020) (“Because Plaintiff filed his original complaint in the United States District Court for the District of Utah before this case was transferred to this Court, the parties and this Court agree that Utah choice-of-law principles determine the substantive law applicable to Plaintiff’s claims. ‘Utah uses the “significant relationship” standard for choice of law issues in tort claims.’” (quoting Bulletproof Techs., Inc. v. Navitaire, Inc., No. 2:03-cv-00428, 2005 WL 2265701, at *7 (D. Utah Aug. 29, 2005))). Note that, under the “rule” adopted by many MDL judges with regard to direct-filed cases, this case would have been analyzed as a Florida case, using Florida choice-of-law rules, if it had been directly filed into the MDL and treated like the Sanchezdirect-filed cases. See discussion infra Part V.

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.),106778 F.3d 545 (6th Cir. 2015). 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.107Id. at 549–50; see also In re Bendectin Litig., 857 F.2d 290, 305 (6th Cir. 1988).

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.”108In re Welding Fume Prods. Liab. Litig., No. 1:03-cv-17000, 2010 WL 7699456, at *12 (N.D. Ohio June 4, 2010) (first quoting Centra, Inc. v. Estrin, 538 F.3d 402, 409 (6th Cir. 2008); and then quoting In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279, 295 n.90 (N.D. Ohio 2007)); see also id. (“Given that a case remanded by this MDL Court to a transferor court was originally filed in either that transferor court, or in a State court within that federal district before removal, it is the choice-of-law principles of the State where the transferor court sits that will apply.”). This reasoning also appears in the Eighth Circuit’s decision in In re Bair Hugger Forced Air Warming Devices Products Liability Litigation: [S]ince Petitta filed his federal complaint directly in the District of Minnesota, where the MDL is located, and his case was never transferred between federal venues. But he filed in the District of Minnesota only because the MDL court’s standing order directed him to do so. If not for that order, he would have filed in the Southern District of Texas, his case would have been transferred to the MDL in the District of Minnesota, and our precedent would guide us to apply Texas law. 999 F.3d 534, 538–39 (8th Cir. 2021).

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.110Id. at 934. 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.111Id. at 935. 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.112Id. at 936. Subsequent transfer to Minnesota and adoption of a master complaint filed in Minnesota did not erase or undo the original California filing.113Id.

Per Wahl v. General Electric Co.,114786 F.3d 491 (6th Cir. 2015). 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.115See id. at 495–96 (citing Ferens v. John Deere Co., 494 U.S. 516, 531 (1990)) (emphasizing the Supreme Court’s application of the Van Dusen choice-of-law rule to the question of substantive law). 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.116See id. at 496–97. 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.117See, e.g., Sanchez v. Bos. Sci. Corp., No. 2:12-cv-05762, 2014 WL 202787, at *4 (S.D. W. Va. Jan. 17, 2014) (“I will follow the better-reasoned authority that applies the choice-of-law rules of the originating jurisdiction . . . . Therefore, California choice-of-law rules will govern the selection of the statute of limitations.”); In re Bos. Sci. Corp., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-2326, 2015 WL 1637722, at *4 (S.D. W. Va. Apr. 13, 2015) (applying home forum of Virginia’s choice-of-law analysis to questions of punitive damages).

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.118E.g., In re Conagra Peanut Butter Prods. Liab. Litig., 251 F.R.D. 689, 693 (N.D. Ga. 2008) (“[A]ll states in which the transferor court of an individual action sits are considered forum states, and an independent choice of law determination is necessary for the states of all transferor courts.”).. This leads to complex choice-of-law decisions that have to be repeated for each individual plaintiff from a different state.119See, e.g., In re Takata Airbag Prods. Liab. Litig., 193 F. Supp. 3d 1324, 1333 (S.D. Fla. 2016) (“Accordingly, Florida’s choice of law rules apply to Birdsall’s claims because his claims were filed directly in the Southern District of Florida. Alabama’s choice of law rules apply to Pardue’s claims because her case was transferred into the MDL from the Northern District of Alabama. And Pennsylvania’s choice of law rules apply to Vukadinovic’s claims because his case was transferred into the MDL from the Eastern District of Pennsylvania.”). 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.120607 F. Supp. 2d 840 (N.D. Ohio. 2009). 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.121Wahl, 786 F.3d at 496. 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.122Byers, 607 F. Supp. 2d at 843, 846.. 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 MDL123In re Vioxx Prods. Liab. Litig., 478 F. Supp. 2d 897 (E.D. La. 2007). 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.124See id. at 904 n.2. 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.125See id. at 903.. The former, he agrees, should have their home-state choice-of-law apply.126See id. The latter, however, he insists, have availed themselves of Louisiana choice-of-law rules.127Id. at 903–04.. This part of the ruling, however, has not been adopted by any other judge to date.128However, Judge Fallon continues to apply his Vioxx rule in other MDLs. See In re Xarelto (Rivaroxaban) Prods. Liab. Litig., MDL No. 2592, Civil No. 15-cv-03913, 2021 WL 2853069, at *10 (E.D. La. July 8, 2021) (“Unlike the majority of cases in an MDL, which are filed in, or removed to, federal courts across the country and transferred to the MDL court by the Judicial Panel on Multidistrict Litigation, the present case was directly filed into the MDL by two citizens of Louisiana and one citizen of Illinois. For this reason, Louisiana choice-of-law analysis applies to this case.” See In re Vioxx Prods. Liab. Litig., 478 F. Supp. 2d 897, 904 (E.D. La. 2007). (footnote omitted)).

As a highly influential figure in the MDL world, single-handedly presiding over thirteen percent of all nationwide MDL cases from 2015 to 2019,129Ronald C. Porter, Lex Machina, Product Liability Litigation Report 10 (Rachel Bailey & Jason Maples eds., 2020). 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.130Fallon et al., supra note 54, at 2356–57 (footnote omitted).

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.131Pre-Trial Order No. 9 at 2, In re Xarelto (Rivaroxaban) Prods. Liab. Litig., No. 2:14-md-02592 (E.D. La. Mar. 24, 2015) (emphasis added).

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.132See Pre-Trial Order No. 11A attach. A at 1–2, attach. B at 1–2, In re Xarelto, No. 2:14-md-02592 (E.D. La. May 21, 2015) (with examples of both pleadings); Pretrial Order No. 11D, In re Xarelto, No. 2:14-md-02592 (E.D. La. Jan. 27, 2016). 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.133See PreTrial Order No. 11A, supra note 132. 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,134In re Incretin Mimetics Prods. Liab. Litig., No. 3:13-md-02452, 2013 WL 12171761 (S.D. Cal. Nov. 13, 2013). 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.135Id. at *1.

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.”136Short Form Complaint for Damages at 2, In re Incretin Mimetics, No. 3:13-md-02452 (S.D. Cal. Nov. 29, 2013); see also Order Governing Filing of Master Consolidated Complaint at 1, Short Form Complaint, and Master Consolidated Answer(s), In re Incretin Mimetics, No. 3:13-md-02452 (S.D. Cal. Dec. 2, 2013) (noting the general purpose to “streamline the filing and answering of individual complaints”). 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.137This may have been strategic by the judges involved to drive the parties toward a global settlement. Certainly, the Xarelto MDL led to a settlement program following early large scale remand efforts. See Case Management Order No. 12, In re Xarelto, No. 2:14-md-02592 (E.D. La. July 1, 2019) (describing Settlement Program).

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.138Judge Fallon’s article considers a practice of allowing plaintiffs to designate their refusal to allow their matter to be tried under the law of the MDL court’s state, which would be similar in concept to Bradt’s home-state designation conclusion. However, Judge Fallon suggests that courts could ignore such a designation—a prescient prediction, given the subsequent development of case law ignoring home-state designations examined below. See Fallon et al., supra note 54, at 2357 n.116 (“[A]n individual plaintiff could potentially preserve his Lexecon objection by making a notation of such in his complaint. While this alternative appears attractive, it may not be effective. Although there is no case law on the subject, it is doubtful that a litigant can unilaterally place conditions on a court order. Without an order allowing direct filing by a nonresident plaintiff, such plaintiffs have no right to file directly into the MDL. This right is the sole product of the transferee court’s order, although it is conceivable that a plaintiff could file an action directly into the MDL, despite improper venue, and just hope that its filing is not challenged on venue grounds.”). 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 MDL139In re Bausch & Lomb Inc. Contacts Lens Solution Prods. Liab. Litig., No. 2:06-MN-77777, 2007 WL 3046682 (D.S.C. Oct. 11, 2007). 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.”140Id. at *3; accord In re Watson Fentanyl Patch Prods. Liab. Litig., 977 F. Supp. 2d 885, 888 (N.D. Ill. 2013)..

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.14128 U.S.C. § 1631.

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.142Bradt, supra note 6, at 765, 816. Several courts demonstrate this principle in practice. See infra Part IV; see also In re Fresenius GranuFlo/NaturaLyte Dialysate Prods. Liab. Litig., 76 F. Supp. 3d 294, 304 (D. Mass. 2015) (“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.”). But see In re Yasmin & Yaz (Drospirenone) Mktg., Sales Pracs. & Prods. Liab. Litig., No. 3:09-md-0211, 2011 WL 1375011, at *6 (S.D. Ill. Apr. 12, 2011) (“[T]he better approach is to treat foreign direct filed cases as if they were transferred from a judicial district sitting in the state where the case originated.”).

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.144Id. at *1; see generally In re Yasmin & Yaz (Drospirenone) Mktg., Sales Pracs. and Prods. Liab. Litig., 692 F. Supp. 2d 1012, 1015 (S.D. Ill. 2010) (discussing facts of the Yasmin & Yaz MDL). 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.145In re Yasmin & Yaz, 2011 WL 1375011, at *1, *6. 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.146Bradt, supra note 6, at 812–13 (emphasis added) (footnote omitted).

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.147Id. at 816.

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).”148Rothstein & Borden, supra note 90, at 30. The need for this designation and clarity was highlighted in 2014 in a Takata Airbags MDL149In re Takata Airbag Prods. Liab. Litig., 379 F. Supp. 3d 1333 (S.D. Fla. 2019). 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.”150Id. at 1345 n.5 (comparing In re Yasmin & Yaz, 2011 WL 1375011, at *6 (“[T]he better approach is to treat foreign direct-filed cases as if they were transferred from a judicial district sitting in the state where the case originated, [which is] the state where the plaintiff purchased and was prescribed the subject drug.”), and In re Fresenius GranuFlo/NaturaLyte Dialysate Prods. Liab. Litig., 76 F. Supp. 3d 294, 304 (D. Mass. 2015) (disagreeing with premise that direct-filed cases “should lead to . . . only one possible originating district”)). “Without a stipulation by the parties as to where these legal actions should be transferred, the Court will transfer them ‘to a federal district court of proper venue as defined by 28 U.S.C. § 1391,’ ‘pursuant to the Rules of the Judicial Panel on Multidistrict Litigation and 28 U.S.C. § 1404(a).’ However, the Court defers ruling on the proper venue for these legal actions until a more appropriate time.” Id. at 1345 (citation omitted) (quoting In re Incretin Mimetics Prods. Liab. Litig., No. 3:13-md-02452, 2013 WL 12171761, at *1 n.1 (S.D. Cal. Nov. 13, 2013)).

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.151Per the venue statute, an action may be filed in any defendant’s home judicial district or the judicial district where the activities giving rise to the claim occurred. 28 U.S.C. § 1391(b). Note the lack of a specific venue provision focusing on plaintiff’s domicile—which nonetheless is regularly mentioned in decisions trying to locate a home jurisdiction for individual MDL cases:

(b) Venue in General.—A civil action may be brought in—

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.151Id.

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.”152Ryan, supra note 78, at 170. 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.153Id. (citing 28 U.S.C. § 1391(a)–(b)).

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.154Not long ago, venue options were much more limited, but current federal rules provide several options for most cases. Id. (“A venue statute need not be so generous. Indeed, under the Judiciary Act of 1789, venue for suit ‘against an inhabitant of the United States’ lay only in a district ‘whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.’ . . . Frequently, the stingy venue rules in federal court at that time offered the plaintiff only one judicial district—presumptively convenient to the defendant because it was pegged to his residence. The current statute, reacting against the perceived arbitrariness of those venue limitations, has liberalized venue choices.” (footnote omitted)).

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.”155Edward S. Digges Jr. & Michael T. Wharton, Choice of Law in Product Liability Actions: Order for the Practitioner in a Reign of Chaos, 12 U. Balt. L. Rev.395, 397 (1983). 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.”156Id.; see also id. at 424–25 (“For the practitioner, it is even more significant to be able to make affirmative tactical use of applicable choice of law rules. . . . [T]he substantive law of product liability varies from jurisdiction to jurisdiction. Therefore, choice of law decisions can be outcome determinative. In order to take advantage of these differences, the practitioner must educate himself on the relevant choice of law rules to be able to use them to his tactical advantage.”).

Even authors who believe that venue choices should be more limited than the law currently allows still understand the reasons guiding plaintiff choices in venue:

In any given state, plaintiffs might prefer to file suit in certain cities over other cities, in certain counties over other counties, in certain counties over certain cities, or in certain cities over certain counties. Plaintiffs may choose one location over another because of convenience—to the plaintiff, the plaintiff’s witnesses or evidence, or the plaintiff’s attorney; or plaintiffs may choose a location because of its inconvenience to their adversary. Other reasons for choosing a site include favorable local rules, judicial calendars, and potential trial dates. Another reason relates to the reputation of potential jurors (or judges) for giving favorable awards.

Kimberly Jade Norwood, Shopping for a Venue: The Need for More Limits on Choice, 50 U. Mia. L. Rev. 267, 278 (1996) (footnote omitted).

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.15728 U.S.C. § 1391(b). That choice matters because the home state selected will then apply its own system for resolving choice-of-law issues.158This system often results in the home-state court applying its own rules. See, e.g., Zember v. Ethicon, Inc., No. 20-cv-369, 2021 WL 1087041, at *2 (E.D. Wis. Mar. 22, 2021) (“The Court sits in Wisconsin, and Wisconsin law requires that a court ‘presumptively apply’ Wisconsin law.” (citing Wilcox v. Wilcox, 133 N.W.2d 408, 416 (Wis. 1965))). 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:


  1. Plaintiff files suit in one of the locations in which jurisdiction is proper.
  2. 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.
  3. The court uses and applies the home-state’s conflict-of-law rules to determine which state law applies over the dispute.159For an example of a typical choice-of-law process, see Beatty v. Isle of Capri Casino, Inc., 234 F. Supp. 2d 651, 654–56 (E.D. Tex. 2002).

[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.160There is no need to want or expect a uniform choice-of-law regime throughout all jurisdictions. As explained by Kramer:

Certainly plaintiff’s home state is a contender—particularly in dispersed torts, where the plaintiff’s residence is usually also the place where the defendant sold the defective product and where the injury occurred. But states may differ about choice of law just like they differ about other elements of tort recovery. We need not decide what the ideal choice-of-law regime should look like to recognize that such disagreements may produce different outcomes and that these differences are not “unfair” in a system that assumes the legitimacy of multiple legal standards.

Kramer, supra note 3, at 579 n.126..
There are many different approaches used—Professor Symeon Symeonides’s long-standing annual survey, Choice of Law in American Courts,161                  See Symeon C. Symeonides, Choice of Law in the American Courts in 2019: Thirty-Third Annual Survey, 68 Am. J. Compar. L. 235, 236 n.1 (2020). 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.162Id. at 259 tbl.2. 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.163See id. at 258; see also Symeon C. Symeonides, Choice of Law in the American Courts in 2000: As the Century Turns, 49 Am. J. Compar. L. 1, 3 (2001) (noting change in Montana in previous year). 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.164Frankly, attorneys may also be choosing, in part, based on an expectation that the judge will lean toward choosing their own home-state law, regardless of the test employed. See, e.g., Ryan, supra note 78, at 192 (“The more choice-of-law rules vary among the states, and the more states favor application of their own law, the more significant the plaintiff’s forum-selection privilege becomes.”); Christopher A. Whytock, Myth of Mess? International Choice of Law in Action, 84 N.Y.U. L. Rev. 719, 749 (2009) (summarizing recent studies on choice-of-law outcomes and noting that several studies show judges tend to select their own forum’s law). As pointed out by Ryan in Principles of Forum Selection:

The consequence of the difference among states’ choice-of-law rules and the tendency of choice-of-law analysis to favor the forum state is of heightened importance in forum selection. The current lack of uniformity in choice-of-law rules means that the plaintiff who can capture the forum can also capture the applicable choice-of-law rules—and perhaps the substantive law that the court will apply.

Ryan, supra note 78, at 192.

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.165It is not unreasonable to hope that an argument to a New Jersey federal court that New Jersey law should apply could be successful, given a “forum’s natural preference for its own law, based both on convenience and provincialism.” James P. George, Choice of Law: A Guide for Texas Attorneys, 25 Tex. Tech L. Rev. 833, 839 n.23 (1994). 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.”166See Bradt, supra note 6, at 812, 812 n.279, 816. 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 1167Pretrial Order No. 55 exhibit A, at 1, In re Coloplast Corp., Pelvic Support Sys. Prods. Liab. Litig., No. 2:12-md-2387 (S.D. W. Va. May 29, 2014). Similar language appears in the Ethicon Pelvic Repair System MDL Short Form Complaint. Pretrial Order No. 118 exhibit A, at 1, In re Ethicon Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-2327 (S.D. W. Va. May 29, 2014).

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

Figure 2168Pretrial Order No. 73 exhibit A, at 1, 3, In re Taxotere (Docetaxel) Prods. Liab. Litig., No. 2:16-md-02740 (E.D. La. Jan. 4, 2018).

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 3169Case Management Order No. 2 exhibit A, at 1, 4, In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Pracs., & Prods. Liab. Litig., No. 3:16-md-02738 (D.N.J. Feb. 7, 2017)..

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.”170See supra Figure 3 (emphasis added). 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.171See supra Figure 1. 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,172Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998. is remand.173Id. at 27. 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.174As noted by Duke Law School’s Bolch Judicial Institute in its September 2018 report on mass-tort MDLs:

Not only is the overall number of actions in MDLs growing, these actions are becoming more concentrated in a small number of mass-tort MDLs, primarily products liability, and particularly pharmaceutical and health-care cases. Of the MDLs pending in August 2018, 90% of them were consolidated in only 24 MDLs—predominately product liability. Each of the 24 MDLs consisted of 1,000 or more civil actions, for a total of over 152,000 cases. Although the MDL transfer is for pretrial management only, 96% of the individual actions consolidated in MDLs are terminated by the MDL transferee judges.

Bolch Jud. Inst., Duke L. Sch., Guidelines and Best Practices for Large and Mass-Tort MDLs vii (2d ed. 2018) (footnotes omitted).
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.175For an example of a remanded product liability case, see the Ethicon Pelvic Repair System MDL. Pretrial Order No. 243 at 6, In re Ethicon Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-2327 (S.D. W. Va. Oct. 25, 2016) (“Transfer and Remand. At the conclusion of pretrial proceedings, the court, pursuant to PTO # 15 and 28 U.S.C. § 1404(a), will transfer each directly-filed case to a federal district court of proper venue as defined in 28 U.S.C. § 1391. In the alternative, pursuant to PTO # 15 and 28 U.S.C. § 1407, cases that were transferred to this court by the MDL panel shall be remanded for further proceedings to the federal district court from which each such case was initially transferred.”). See Corder v. Ethicon, Inc., 473 F. Supp. 3d 749 (E.D. Ky. 2020), for an example of how remanded cases may then be developed for trial following remand to a “home district” after direct filing into the MDL. 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.176Multidistrict Litigation Terminated Through September 30, 2020, supra note 15. These reports prove that hundreds of cases consolidated in MDLs do end up remanded every year.177Id. This is an example of a report from the JPML demonstrating how many MDLs were terminated through 2020, including how many individual cases within an MDL were subject to a 28 U.S.C. § 1407 remand. For example, in the Eleventh Circuit, over 5,500 cases have been remanded to their original court since the JPML began consolidating matters for MDL consideration. Id. at 53–56. 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,178See, e.g., Porter, supra note 129. 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.179In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig., No. 1:19-md-02875, 2021 WL 307486, at *8 (D.N.J. Jan. 29, 2021).

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.”180Id. at *7–8. 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.”181Id. at *7 (emphasis added) (quoting Case Management Order No. 3 ¶ 2.3, In re Valsartan, No. 1:19-md-02875 (D.N.J. Apr. 9, 2019)).

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.”182Id. 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,18376 F. Supp. 3d 294 (D. Mass. 2015). 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.184Id. at 304 (emphasis added).

A similar outcome was reached in Dobbs v. DePuy Orthopedics, Inc.,185842 F.3d 1045 (7th Cir. 2016). in the Seventh Circuit.186Id. at 1048–49 (“Dobbs’s claim, however, was filed in the Northern District of Ohio only because the DePuy multidistrict litigation was already in progress there. Dobbs’s complaint stated that the Northern District of Illinois was the appropriate venue absent the multidistrict litigation. That advises treating the Northern District of Illinois as the original venue.”); see also Carcillo v. Nat’l Hockey League, No. 1:19-cv-06156, 2021 WL 1172264, at *5 (N.D. Ill. Mar. 29, 2021) (applying Dobbs).

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.187This is in stark contrast to the statute controlling remand of non-direct-filed cases. In those cases, the JPML has ordered, there is no discretion to send the case anywhere but where it was originally filed—even where that original location may no longer be the appropriate court. See, e.g., In re Biomet M2A Magnum Hip Implant Prods. Liab. Litig., 357 F. Supp. 3d 1389, 1390 (J.P.M.L. 2018). For example, in In re Biomet, a Wyoming plaintiff originally filed in New Jersey against both New Jersey and Indiana defendants. Memorandum of Law in Support of Motion of Defendants Biomet, Inc., Biomet Orthopedics, LLC, Biomet Manufacturing, LLC, and Biomet U.S. Reconstruction, LLC to Vacate Conditional Remand Order at 2–3, 8, In re Biomet, MDL No. 2391 (J.P.M.L. Oct. 3, 2018) (describing the facts and procedural history of Chadwick v. Biomet, Inc., Case No. 3:12-cv-614). The case was transferred and consolidated to an MDL in Indiana. Id. at 2–3. By the time the pretrial proceedings were complete and the case could be remanded, the New Jersey defendant had been dismissed, such that the case was going back to New Jersey as a Wyoming vs. Indiana suit. See id. at 3. The parties asked the MDL court to remand the matter elsewhere as venue in New Jersey was no longer proper. In re Biomet, 357 F. Supp. 3d at 1389–90. The MDL court refused, and the matter was heard by the JPML court, which also refused, stating plainly that the governing MDL statute had no room for judicial discretion in where a matter should be remanded:

[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. Under Section 1407(a), “[e]ach action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated[.]” . . . [T]he Panel is without authority to “redirect the remand” to a different, non-originating court. Instead, any motion for change of venue must be made to the original transferor court following Section 1407 remand. While the parties may view this process as cumbersome, . . . the clear terms of the statute afford the Panel no 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.”

Id. at 1390 (quoting 28 U.S.C. § 1407(a)).
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.,188No. 1:19-cv-12549, 2020 WL 2079511 (D. Mass. Apr. 30, 2020), reconsideration denied, 2021 WL 149255 (D. Mass. Jan. 15, 2021). also reflects the Bradt-desired outcome when a clearly expressed desire by the plaintiff is found in the direct-filed short form complaint.189Id. at *2. 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.”190Short Form Complaint at 1, In re C. R. Bard, Inc. Pelvic Sys. Prods. Liab. Litig., MDL No. 2:10-md-02187, No. 2:13-20202 (S.D. W. Va. July 12, 2013). 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.191Id. 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“The parties do not dispute that Massachusetts law governs Plaintiff’s claims because she filed her complaint directly in the MDL and her alleged injuries occurred in the Commonwealth.” Frady, 2020 WL 2079511, at *2. 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.193Id. (“When a case is filed directly in an MDL, ‘[t]he Sixth and Seventh Circuits and most district courts to have addressed the issue hold that the choice-of-law rules of the district to which the case is eventually transferred for trial should apply, not those of the transferring MDL-designated court.’” (quoting 17A James Wm. Moore, Moore’s Federal Practice § 124.30 (3d ed. 2020)) (citing In re Fresenius GranuFlo/NaturaLyte Dialysate Prods. Liab. Litig., 76 F. Supp. 3d 294, 304 (D. Mass. 2015) (“I agree with the notion that the proper approach for direct filed cases is to treat them as if they were transferred from a judicial district sitting in the state where the case originated.”))).

Similar analysis appears in Dalton v. C. R. Bard, Inc.:

In multidistrict litigation, “the [c]ourt is bound to apply the [substantive] law of the transferor forum.” In a directly-filed case that is later transferred, however, it is not immediately apparent which court is the “transferor forum,” because the MDL court is not literally the transferee court: it did not receive the case by transfer. But under Fifth Circuit authority, “[c]ases that are directly filed in an MDL court are treated ‘as if they were transferred from a judicial district sitting in the state where the case originated.’” Because this case originated in Texas—the surgery and all related factual issues arose in Texas—and the parties agree that Texas substantive law governs, the court concurs in this conclusion.

No. 3:19-cv-2484, 2020 WL 1307965, at *2 n.3 (N.D. Tex. Mar. 19, 2020) (first quoting Hildebrandt v. Indianapolis Life Ins. Co., 2009 WL 804123, at *2 (N.D. Tex. Mar. 26, 2009); and then quoting In re DePuy Orthopaedics, Inc., 820 F.3d 345, 348 (5th Cir. 2017)).

This case, much like Frady, involved a direct-file plaintiff who designated the Northern District of Texas as the proper home venue of the case upon remand, and whose case was duly sent and filed there after proceedings were completed in the MDL in Virginia. And again like Frady, the court had no need of conducting a choice-of-law analysis using Texas’s rules for doing so, as all the parties agreed that Texas law governs..

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.194The Valsartan case management order discussed in Part III, however, suggests that in fact courts are continuing to grant themselves discretion to choose whether to send direct-filed cases to the district courts selected by plaintiffs or to courts “approved of” by MDL judges. Given that, in most cases, those choices conveniently provide the same outcome, it is impossible to parse out clearly whether judicial regard or disregard for plaintiff’s selection of home court has played any role. See In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig., No. 1:19-md-02875, 2021 WL 307486, at *7–8 (D.N.J. Jan. 29, 2021). 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,195No. 19-cv-5184, 2020 WL 5407818 (E.D. Pa. Sept. 9, 2020). 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).196Id. at *4 (citation omitted).

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.197Id. at *3 (citation omitted); accord In re Bair Hugger Forced Air Warming Devices Prods. Liab. Litig., 999 F. Supp. 3d 534, 538–39 (8th Cir. 2021) (“[The plaintiff] filed in the District of Minnesota only because the MDL court’s standing order directed him to do so. If not for that order, he would have filed in the Southern District of Texas, his case would have been transferred to the MDL in the District of Minnesota, and our precedent would guide us to apply Texas law. . . . In our view, Petitta’s compliance with this measure of administrative convenience should not alter the choice of law approach we would otherwise employ in an MDL case.”)..

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.198The Bernard court applied Pennsylvania choice-of-law rules, which it described as “flexible” and incorporating elements of both the Restatement (Second) and governmental-interest analyses, and ultimately concluded that Pennsylvania law, rather than Delaware law, should apply. Bernard, 2020 WL 5407818, at *4.

A similar outcome occurred in Jones v. Ethicon, Inc.,199No. 4:21-cv-23, 2021 WL 1199028 (S.D. Ga. Mar. 30, 2021). 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.200Id. at *3–4. “For cases directly filed with an MDL court and then subsequently transferred pursuant to 28 U.S.C. § 1404, the transferee court’s choice-of-law rules govern.” Id. at *3 (citing Wahl v. Gen. Elec. Co., 786 F.3d 491, 494 (6th Cir. 2015)). The Jones court continued:

Here, Plaintiff directly filed the Short Form Complaint with the Southern District of West Virginia, which then transferred Plaintiff’s case to this Court pursuant to 28 U.S.C. § 1404(a). Thus, Georgia’s choice-of-law rules apply.

Georgia follows the traditional rule that in tort actions, the law of the place of the injury—or lex loci delicti—governs the resolution of the substantive issues. Under the rule of lex loci delicti, a tort action is governed by the substantive law of the state where the tort was committed. The parties do not dispute that Plaintiff was implanted with the device in Savannah, Georgia, that she sustained her alleged injuries in Georgia, or that Georgia law applies. Thus, Plaintiff’s claims are governed by Georgia law.

Id. at *3–4 (citations omitted) (internal quotation marks omitted).

Something similar happened in Isaac v. C. R. Bard, Inc., No. 1:19-cv-00895, 2021 WL 1177882 (W.D. Tex. Mar. 29, 2021), in which Isaac’s short form designated Texas. Her case was remanded to Texas, and the subsequent choice-of-law analysis determined Texas law applied to the dispute. Id. at *1, 10. Interesting for these purposes is the language in the order remanding the matter to Texas: “CMO 4 provides that, upon the MDL’s closure, each pending direct-filed case shall be transferred pursuant [to] § 1404(a) to the district identified in the short form complaint.” Suggestion of Remand and Transfer Order at 4, Isaac, No. 1:19-cv-00895 (D. Ariz. Aug. 20, 2019). That Case Management Order, further discussed in the notes to Part VI below, specifies that direct-filed cases will be duly remanded to the location designated in the short form complaint—language that, if universally adopted and actually applied by MDL courts, would circumvent this entire problem. Id.

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,201In re Bard IVC Filters Prods. Liab. Litig., No. 2:15-md-02641, 2021 WL 565336 (D. Ariz. Feb. 11, 2021). 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.”202Id. at *2 (emphasis added) (citations omitted). “Defendants’ right to challenge venue and personal jurisdiction upon transfer is preserved.” Id. at *2 (citations omitted). 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.”203Id. at *2. 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.”204Id. at *2 (emphasis added) (citing Case Management Order No. 4 at 7, In re Bard, No. 2:15-md-02641 (D. Ariz. Dec. 17, 2015)).

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.”205Id. (emphasis added). 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 Devices206In re Bair 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.207Id. at 538–39. 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.”208Id. at 539 (quoting Pretrial Order No. 5: Direct Filing at 1–2, In re Bair Hugger Forced Air Warming Devices, No. 0:15-md-02666 (D. Minn. Aug. 7, 2019)).

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.”209Id. (emphasis added).

In short, the default “home forum” was Minnesota unless plaintiffs named another “but for” court on their short form complaint.210Id. 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,21128 U.S.C. § 1391(c)(2) (venue statute); John Welbes, 3M Picks Up “Bair Hugger” Manufacturer, Pioneer Press (Nov. 12, 2015, 5:53 AM), but assigning a default that could contradict plaintiff venue choice in some hypothetical situation seems like an unnecessary step.212An early case applying the Bair Hugger ruling actually involved a plaintiff who hoped to convince the court to ignore her short form designation of a “but for” home court and instead apply a Minnesota choice-of-law test to her claims and then have (the more plaintiff-friendly) Minnesota substantive law govern her claims. Axline v. 3M Co., 8 F.4th 667, 671 (8th Cir. 2021). The Axline court declined to depart from the plaintiff’s own short form designated home court of Ohio and upheld a district court judgment applying Ohio’s choice-of-law test and finding that Ohio’s laws applied to plaintiff’s suit. Id. at 672, 676–77.

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.214Pretrial Order No. 54 at 1, In re Bos. Sci. Corp., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-2326 (S.D. W. Va. Aug. 29, 2013). 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.215Short Form Complaint, Sanchez, No. 12-cv-05762 (S.D. W. Va. Sept. 21, 2012). 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.216Sanchez, 2014 WL 202787 at *4–5. However, the judge did not make this decision based on where the plaintiff asked the case to go.217See id. 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.218Id. at *3–4. 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.219Id. at *3. 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.”220Id. at *4.

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.221See, e.g., About, Child.’s Hosp. New Orleans, (“In 2019, Children’s Hospital [New Orleans] cared for children from all 64 parishes in Louisiana, 43 states, and nine countries!”); Laura Sussman, Suite Relief, MD Anderson Cancer Center (Spring 2015), (describing various housing options provided for out-of-state patients traveling to MD Anderson in Houston for care).. 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.222See, e.g., In re Bos. Sci. Corp., Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2:12-md-2326, No. 2:12-CV-9912, 2015 WL 1405504, at *3 (S.D. W. Va. Mar. 26, 2015) (citing and applying Sanchez to conclude that the choice-of-law rules of the state in which the plaintiff received implantation surgery guide the MDL court’s choice-of-law analysis), aff’d sub nom. Hay-Rewalt v. Bos. Sci. Corp., 623 F. App’x 92 (4th Cir. 2015). 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.”223Citations counted in Westlaw on Feb. 28, 2021, using filter “better-reasoned authority,” totaled 217.. 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.224Sanchez, 2014 WL 202787, at *4 (“In prescription drug MDLs, the originating jurisdiction is the place where the drug was purchased and prescribed.” (first citing In re Yasmin & Yaz (Drospirenone) Mktg., Sales Pracs. & Prods. Liab. Litig., No. 3:09-md-02100, 2011 WL 1375011 (S.D. Ill. Apr. 12, 2011); and then citing In re Avandia Mktg, Sales Practices & Prods. Liab. Litig., MDL No. 2:07-md-01871, 2012 WL 3205620, at *2 (E.D. Pa. Aug. 7, 2010))). 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.225See, e.g., 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 v. Ethicon, Inc., No. 2:13-cv-12036, 2014 WL 346717, at *7 (S.D. W. Va. Jan. 30, 2014))).

At one point over the course of a few days, the MDL judge in the Ethicon Pelvic Repair System MDL226See In re Am. Med. Sys., Inc., Pelvic Repair Sys. Prods. Liab. Litig., 844 F. Supp. 2d 1359 (J.P.M.L. 2012) (initial transfer order for the Ethicon Pelvic Repair System MDL). (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.227Price v. Ethicon, Inc., No. 2:14-cv-020783, 2020 WL 6568858, at *2 (S.D. W. Va. Nov. 9, 2020); Jenkins v. Ethicon, Inc., No. 2:14-cv-003305, 2020 WL 6471027, at *2 (S.D. W. Va. Nov. 3, 2020); Jones v. Ethicon, Inc., No. 2:13-cv-007246, 2020 WL 6471031, at *2 (S.D. W. Va. Nov. 3, 2020); Markes v. Ethicon, Inc., No. 2:13-cv-012852, 2020 WL 6471029, at *2 (S.D. W. Va. Nov. 3, 2020); Maschler v. Ethicon, Inc., No. 2:13-cv-020646, 2020 WL 6471026, at *2 (S.D. W. Va. Nov. 3, 2020); Trulove v. Ethicon, Inc., No. 2:13-cv-031636, 2020 WL 6471025, at *2 (S.D. W. Va. Nov. 3, 2020); Silva v. Ethicon, Inc., No. 2:14-cv-000059, 2020 WL 6436943, at *2 (S.D. W. Va. Nov. 2, 2020); Spradley v. Ethicon, Inc., No. 2:15-cv-004412, 2020 WL 6436944, at *2 (S.D. W. Va. Nov. 2, 2020); Smith v. Ethicon, Inc., No. 2:13-cv-08511, 2020 WL 6436941, at *2 (S.D. W. Va. Nov. 2, 2020); Aguirre v. Bos. Sci. Corp., No. 2:12-cv-09240, 2020 WL 6385934, at *2 (S.D. W. Va. Oct. 30, 2020); McCoy v. Ethicon, Inc., No. 2:14-cv-09425, 2020 WL 6370726, at *2 (S.D. W. Va. Oct. 29, 2020); Patterson v. Ethicon, Inc., No. 2:12-cv-03394, 2020 WL 6370722, at *2 (S.D. W. Va. Oct. 29, 2020); Rasa v. Ethicon, Inc., No. 2:13-cv-033443, 2020 WL 6370724, at *2 (S.D. W. Va. Oct. 29, 2020); Jenkins v. Ethicon, Inc., No. 2:12-cv-004987, 2020 WL 6324838, at *2 (S.D. W. Va. Oct. 28, 2020); Grizzle v. Ethicon, Inc., No. 2:12-cv-002991, 2020 WL 6324839, at *2 (S.D. W. Va. Oct. 28, 2020); Bloomfield v. Ethicon, Inc., No. 2:13-cv-25040, 2020 WL 6291447, at *2 (S.D. W. Va. Oct. 27, 2020); Buchman v. Ethicon, Inc., No. 2:14-cv-00750, 2020 WL 6291382, at *2 (S.D. W. Va. Oct. 27, 2020); Buntgen v. Ethicon, Inc., No. 2:13-cv-05886, 2020 WL 6292808, at *2 (S.D. W. Va. Oct. 27, 2020); Champion v. Ethicon, Inc., No. 2:14-cv-02952, 2020 WL 6291369, at *2 (S.D. W. Va. Oct. 27, 2020); Foley v. Ethicon, Inc., No. 2:13-cv-10600, 2020 WL 6291376, at *2 (S.D. W. Va. Oct. 27, 2020); Garcia v. Ethicon, Inc., No. 2:13-cv-23019, 2020 WL 6292802, at *2 (S.D. W. Va. Oct. 27, 2020); Gilsdorf v. Ethicon, Inc., No.2:12-cv-08924, 2020 WL 6291383, at *2 (S.D. W. Va. Oct. 27, 2020); Green v. Ethicon, Inc., No. 2:13-cv-26358, 2020 WL 6291381, at *2 (S.D. W. Va. Oct. 27, 2020); Jefford v. Ethicon, Inc., No. 2:13-cv-004034, 2020 WL 6291327, at *2 (S.D. W. Va. Oct. 27, 2020). 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.,228Belanger v. Ethicon, Inc., No. 2:13-cv-12036, 2014 WL 346717 (S.D. W. Va. Jan. 30, 2014). 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.”229Id. at *7; see also, e.g., May-Weirauch v. Ethicon, Inc., No. 1:20-cv-01205, 2020 WL 6946445, at *2 (C.D. Ill. Nov. 25, 2020); Hall v. Ethicon, Inc., No. 3:20-CV-516, 2020 WL 6826489, at *2 (N.D. Ind. Nov. 20, 2020); Kelly v. Ethicon, Inc., No. 20-CV-2036, 2020 WL 4572348, at *2 (N.D. Iowa Aug. 7, 2020). 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.230Belanger, 2014 WL 346717, at *7 (“As this is a direct-filed case, the choice of law that applies is the place where the plaintiff was implanted with the product. Here, the plaintiff was implanted in Canada and thus Canadian choice of law rules would apply.”) (citing Sanchez, 2014 WL 202787, at *4)); Bell v. Ethicon Inc., No. 4:20-cv-3678, 2021 WL 1111071, at *2 (S.D. Tex. Mar. 23, 2021); Curtin v. Ethicon, Inc., No. 20-cv-3172, 2021 WL 825986, at *3 (D. Colo. Mar. 4, 2021); Shostrom v. Ethicon, Inc., No. 20-cv-1933, 2021 WL 778994, at *3 (D. Colo. Mar. 1, 2021).

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.232Chery, 2017 WL 1113306, at *1–2 (citing Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999, 1001 (Fla. 1980)).

This again reflects the problem found in SanchezChery asked in her short form complaint for a Florida home court designation.233Short Form Complaint at 1, Chery, 2017 WL 1113306 (“District Court and Division in which action is to be filed upon transfer from the MDL: United States District Court for the Southern District of Florida, Fort Lauderdale Division.”). 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,234Ridgley v. Ethicon, Inc., No. 2:12-cv-01311, 2017 WL 525854 (S.D. W. Va. Feb. 8, 2017), cites Sanchez for the proposition that place of implantation is the only appropriate home venue to be considered and is itself cited in turn by a few cases. Id. at *2; accord, e.g., Cotton v. Ethicon, Inc., No. 3:20-cv-00074, 2021 WL 736211, at *3 (N.D. Ind. Feb. 25, 2021); Porogi v. Ethicon, Inc., No. 3:20-cv-00513, 2020 WL 4676571, at *2 (N.D. Ind. Aug. 12, 2020). Another branch has emerged in Arizona, citing the same incorrect statement as though it is fact: “In a direct-filed case, the choice of law that applies is the place where the plaintiff was impacted with the product.” Thornton v. Ethicon Inc., No. CV-20-00460, 2021 WL 4437978, at *7 (D. Ariz. Sep. 28, 2021) (citing McBroom v. Ethicon, Inc., No. CV-20-02127, 2021 WL 824411, at *1 n.2 (D. Ariz. Mar. 4, 2021)). 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.”236Id. at *2 (citation omitted). 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,”237Short Form Complaint at 1, May-Weirauch, 2020 WL 6946445. yet the court ignored this clear direction from the plaintiff when determining for itself the proper home venue of the action.238May-Weirauch, 2020 WL 6946445, at *2. 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.240Id. at *4 (citations omitted).

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 4241Short Form Complaint at 1, Dickson, 2020 WL 1492883.

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.242Dickson, 2020 WL 1492883, at *4. 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 MDL244In re Atrium Med. Corp. C-Qur Mesh Prods. Liab. Litig., 223 F. Supp. 3d 1355 (J.P.M.L. 2016). in New Hampshire, a bellwether plaintiff designated Maine as his home venue.245Short Form Complaint at 1, Newell v. Atrium Med. Corp., No. 1:17-cv-00250, 2019 WL 4060067 (D.N.H. June 21, 2017). 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 5246Id.

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.247Newell, 2019 WL 4060067, at *2 (“As defendants state, New Hampshire choice-of-law principles govern the choice of law in this bellwether case.” (citing Lexington Ins. Co. v. Gen. Accident Ins. Co. of Am., 338 F.3d 42, 46 (1st Cir. 2003))). 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.248Another mystery remand—to a non-designated state, but without apparent complaint—is Hosbrook v. Ethicon, Inc., No. 3:20-cv-00088, 2021 WL 1599199, at *6 (S.D. Ohio Apr. 23, 2021). Ms. Hosbrook designated New Jersey on her Ethicon MDL short form complaint, Short Form Complaint at 1, Hosbrook, 2021 WL 1599199, but the matter was remanded to Ohio, Hosbrook, 2021 WL 1599199, at *1. The Ohio judge then evaluated the case, using Ohio choice-of-law analysis, and determined that Tennessee law controlled because Tennessee was the site of the injury. Id. at *6. It is possible that the parties agreed on remand to Ohio and the remand judge then applied his sitting court’s choice-of-law rules to determine which state law would control in this case:

Under Ohio’s choice-of-laws rules, the law of the place of injury controls unless another jurisdiction has a more significant relationship to the lawsuit. Because the surgical implant of the pelvic mesh product occurred in Tennessee, and no other state has a more significant relationship to this claim, the substantive law of Tennessee applies.

Id. (citation omitted) (internal quotation marks omitted).

A strange outlier is the opinion in Wilson v. C.R. Bard, Inc.,249No. 5:19-cv-00567, 2020 WL 2574652 (E.D.N.C. May 21, 2020). 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.250See id. at *3. 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.”251Short Form Complaint at 1, Wilson, 2020 WL 2574652. 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.252Wilson, 2020 WL 2574652, at *3 (“As a 28 U.S.C. § 1404(a) transferee court, the court must apply the choice-of-law rules of the transferor state: here, West Virginia.” (citing Ferens v. John Deere Co., 494 U.S. 516, 523 (1990))). “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.”253Id. (quoting Kenney v. Indep. Ord. of Foresters, 744 F.3d 901, 905, 908 (4th Cir. 2014). 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.254Elizabeth Courson, No Looking Back: The Effect of Transfer on the Choice of Law Rules Applicable to Directly Filed Multidistrict Litigation Cases, 46 U. Mem. L. Rev. 437, 441 (2015) (footnote omitted).

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.255Bradt, supra note 6, at 816.

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.”256Id. at 812–13. 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.257In re Biomet M2A Magnum Hip Implant Prods. Liab. Litig.,357 F. Supp. 3d 1389, 1390 (J.P.M.L. 2018). “[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.”258Id. (internal quotation marks omitted). 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.”25928 U.S.C. § 1407(a). 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.260Kramer, supra note 3, at 578.

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.”261Id. at 550.

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.262Courson, supra note 254, at 455 (“Taken as a whole, courts and scholars have made it clear that forum-shopping should be stopped.”); see alsoMark Moller, The Checks and Balances of Forum Shopping, 1 Stan. J. Complex Litig. 107, 108–09 (2012) (“On one hand, federal jurisdiction doctrines, like the ‘deeply rooted presumption in favor of concurrent state court jurisdiction,’ enable forum shopping. But on the other hand, Erie condemns it. Previous accounts of forum shopping have travelled along this divide. Federal jurisdiction specialists suggest the right to choose a forum might be a protected structural right. Erie specialists treat forum shopping as a violation of fairness norms.” (footnotes omitted) (quoting Tafflin v. Levitt, 493 U.S. 455, 459 (1990))). 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.263For example, in Kirchman v. Novartis Pharm. Corp., No. 8:06-cv-1787-T-24, 2014 WL 2722483, at *4 (M.D. Fla. June 16, 2014), plaintiffs argued that the place of ingestion of a complained-of drug should control, while defendants argued that the site where the drug was labeled and packaged with warnings should control instead, id. at *1, 4–5. The court sided with defendants. Id. at *4–5. 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.264Ryan, supra note 78, at 169 (“The plaintiff has the initial choice of forum, but the defendant then has recourse to various legal doctrines—such as transfer of venue and dismissal for forum non conveniens—that counteract the plaintiff’s choice and seek judicial management of the place of suit.”).

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.265In fact, in some states, “place of injury” is not dispositive nor granted more weight than any other factor. See, e.g., Jones v. Winnebago Indus., Inc., 460 F. Supp. 2d 953, 968 (N.D. Iowa 2006) (“[A]lthough ‘place of injury’ is certainly a factor in the conflict-of-laws analysis under Iowa law, . . . there is no presumption that the law of the ‘place of injury’ should apply pursuant to Restatement (Second) of Conflict of Laws § 146 [but instead that section 145’s ‘most significant relationship’ test applies].”). 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.”266Van Dusen v. Barrack, 376 U.S. 612, 633–34 (1964); see also id. at 635 (“§ 1404(a) was not designed to narrow the plaintiff’s venue privilege or to defeat the state-law advantages that might accrue from the exercise of this venue privilege but rather the provision was simply to counteract the inconveniences that flowed from the venue statutes by permitting transfer to a convenient federal court.”). 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.”267Ryan, supra note 78, at 168–69 (“The plaintiff’s forum-selection privilege is axiomatic to the common-law tradition of party autonomy. It is related to the idea that the plaintiff is the ‘master of his complaint’ and thereby frames the issues for judicial resolution.”). For a discussion of what factors a plaintiff might consider when selecting an initial forum, see Norwood, supra note 156, at 278 (“In any given state, plaintiffs might prefer to file suit in certain cities over other cities, in certain counties over other counties, in certain counties over certain cities, or in certain cities over certain counties. Plaintiffs may choose one location over another because of convenience—to the plaintiff, the plaintiff’s witnesses or evidence, or the plaintiff’s attorney; or plaintiffs may choose a location because of its inconvenience to their adversary. Other reasons for choosing a site include favorable local rules, judicial calendars, and potential trial dates. Another reason relates to the reputation of potential jurors (or judges) for giving favorable awards.” (footnote omitted)); see also Ryan, supra note 78, at 200 (“There can be little doubt that forum selection affects the outcome of litigation. The choice of favorable substantive law is the most dramatic prize for the successful forum-shopper, but there are also many important procedural distinctions among courts. Less tangible from a theoretical perspective, but just as real for the practicing lawyer, are differences in the quality and sympathies of the judge and in the pool from which the jury is drawn. A recent empirical study of transfer motions in federal court found a marked decline in the plaintiff’s rate of winning in cases in which venue was transferred. Another study found a similar decline in the plaintiff’s win rate in cases removed to federal court. Forum shopping can be outcome-determinative.” (footnotes omitted)). 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.”268Lexecon Inc. v. U.S. Dist. Ct. for the Dist. of Ariz., No. 95-70380, 1995 WL 432395, at *3 (9th Cir. July 21, 1995) (Kozinski, C.J., dissenting).

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.269Ryan, supra note 78, at 203.

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.270Pro hac vice practice rules will not resolve this issue in jurisdictions that require a sponsoring local attorney, which many jurisdictions do require. See, e.g., Non-Resident Attorney Fee (Pro Hac Vice), Tex. Bd. of L. Exam’rs, (requiring a motion from a resident Texan practicing attorney during application process); Pro Hac Vice, State Bar of Cal., (requiring a “California attorney of record” information on pro hac application to state bar); Pro Hac Vice Admission, U.S. Dist. Ct. Dist. of Md., (requiring a movant-sponsor for pro hac vice admission in federal courts)..

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.271Sabrina DeFabritiis, Lost in Translation: Oral Advocacy in A Land Without Binding Precedent, 35 Suffolk Transnat’l L. Rev. 301, 304 (2012). 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.”272Id. at 319. 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.273Lawrence Lessig, The Path of Cyberlaw, 104 Yale L.J. 1743, 1745 (1995) (footnote omitted).

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.274See Bradt, supra note 6, at 796 (describing the development and use of direct filing).

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.275See Moller, supra note 262, at 114; Norwood, supra note 156, at 278. 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.276The problem presented by this growing body of case law is exacerbated by the often-uncomfortable job that remand judges have, in suddenly being handed an almost-fully developed lawsuit with parties knowledgeable about the months or years of previous proceedings. This was discussed at length by an apparently irritated judge in Shostrom v. Ethicon, Inc.:

Before the Court addresses the substance of the Motion for Summary Judgment, it is necessary to address the quality of the parties’ briefs. Underlying the papers is the flawed assumption that this Court is as familiar with the litigation as the judge presiding over the MDL in terms of relevant facts, applicable law, and the medical devices at issue. A few specific issues include: the parties’ routinely fail to cite cases applying Colorado law, or sometimes fail to cite case law at all; the parties refer to “this Court,” when it appears as though they really mean the Southern District of West Virginia; and the parties do not provide any background summary of the case to bring the Court up to speed, such as a brief medical history of Shostrom, her medical team, her symptoms, her implant surgery, her post-surgery complications, the explant surgery, and any permanent complications leading to this lawsuit. The skeletal statements of material facts were also not particularly enlightening. The Court especially did not appreciate Ethicon’s repeated cursory and undeveloped or underdeveloped arguments. Ultimately, the Court finds it absurd but necessary to remind the parties that unlike them, and unlike the presiding judge in the MDL, the undersigned’s life has not been intertwined with pelvic mesh litigation for the last seven years.

In sum, it is unclear whether the quality of the briefs is low because the parties and counsel are involved in numerous similar cases and are repurposing material, or some other reason exists. Nonetheless, the Court expects the quality of lawyering to improve for the duration of this case.

No. 20-cv-1933, 2021 WL 778994, at *1 (D. Colo. Mar. 1, 2021) (citations omitted).
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.277This solution is almost exactly relayed by Case Management Order No. 4 in In re Bard IVC Filters Products Liability Litigation. No. 2:15-md-02641 (D. Ariz. Dec. 17, 2015). The district court stated, early in the proceedings, that direct-filed short-form matters would be remanded to the court designated on the short form. Id. at 3–4. However, the court also allowed for defendants to contest that designation at the MDL-court level. Id. at 4. This is odd; surely a wrongly filed case would be subject to immediate dismissal once it reaches the court that lacks jurisdiction. It does, however, give the defendants an opportunity to override the plaintiff’s choice. Id. Without that caveat, it would otherwise provide the solution considered above:

Upon completion of the pretrial proceedings related to a civil action as determined by this Court, the case shall be transferred pursuant to 28 U.S.C. § 1404(a) or § 1406(a) to the District Court identified in the Short Form Complaint, provided the parties choose not to waive Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). The fact that a case was filed directly in this District and MDL proceeding shall not constitute a determination by this Court that jurisdiction or venue are proper in this District, and shall not result in this Court being deemed the “transferor court” for purposes of this MDL. In addition, filing a Short Form Complaint in this District shall have no impact on the conflict of law rules to be applied to the case. Instead, the law of the jurisdiction where the case is ultimately transferred will govern any conflict of law. Prior to transfer, Defendants may object to the district specified in the Short Form Complaint, based on venue or jurisdiction (including a lack of personal jurisdiction based on Daimler AG v. Bauman, 134 S. Ct. 746 (2014)), and propose an alternative jurisdiction for the Court’s consideration.

Id. at 3–4.

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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