Personal Injury Law

A Final MDL Timing Issue

By James M. Beck and Mark Herrmann

We did a series of posts about multidistrict litigation last month, including this MDL compendium and this post about predicting how long the MDL Panel will take to decide motions.

In the latter of those two posts, we deftly avoided one issue. (No -- we didn't "sluff" it; we "deftly avoided" it.)

We wrote:

"First, when will the Panel hear argument on the motion? 'In recent years, the Panel has scheduled oral arguments on the fourth Thursday of every other month, beginning in January.' [Citation omitted.] So the calculation is this: Look at the day the motion in your case is filed. Allow 20 days for the responsive brief. Allow a decent time between the close of briefing and the MDL Panel's next hearing date. That date -- the fourth Thursday of January, March, May, July, September, or November -- is when your motion will be heard."

The sluff -- er, deft avoidance -- is when we referred to the date your motion was "filed" and wrote that you should allow "a decent time between the close of briefing and the MDL Panel's next hearing date." What does that mean? If you file a motion to consolidate on December 1, will that motion be heard on the fourth Thursday of January? Or will the hearing on your motion slip until March? How long before the hearing date must you file a motion to be sure the motion will be heard on that date?

Naturally, since we had . . . deftly avoided . . . that issue, a reader called and asked us that very question.

Here's why we had avoided answering the question in our earlier post: It's terribly hard to say. Suppose you send your motion to the Panel by overnight mail on December 1. The Panel will not necessarily file that motion on December 2; it can take a week or more before your motion is "deemed filed."

And the Panel will then examine your papers. If your service list must be corrected, or other changes must be made, the Panel may delay the running of the ordinary timeline.

Thus, overnighting a motion to the Panel on December 1 does not guarantee that the motion will be heard at the January hearing. It may be; it may not be. That's all we can say.

We hope that helps.

And you've sure taught us a lesson about avoiding what we perceive to be obscure issues and thinking that we'll get away with it.

Full post as published by Drug and Device Law on October 15, 2008 (boomark / email).