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In Re: Wilson ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    5-15-2006
    In Re: Wilson
    Precedential or Non-Precedential: Precedential
    Docket No. 05-4040
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
    Recommended Citation
    "In Re: Wilson " (2006). 2006 Decisions. Paper 1000.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1000
    This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
    University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
    University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
    PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 05-4040
    IN RE: YUVONNE B. WILSON, et al.,
    Petitioners
    On Petition for a Writ of Mandamus
    to the United States District Court
    for the Eastern District of Pennsylvania
    (Related to MDL-1203)
    District Judge: Honorable Harvey Bartle, III
    Argued December 13, 2005
    Before: SLOVITER, SMITH and STAPLETON,
    Circuit Judges.
    (Filed May 15, 2006)
    Sylvia Davidow
    Fleming & Associates
    Houston, TX 77056
    Thomas C. Goldstein (Argued)
    Goldstein & Howe
    Washington, DC 20016
    Jonathan S. Massey (Argued)
    Bethesda, MD 20817
    Attorneys for Petitioners Yuvonne B. Wilson, et al.
    Robert D. Rosenbaum (Argued)
    Arnold & Porter
    Washington, DC 20004
    Michael T. Scott
    Paul B. Kerrigan
    Milind M. Shah
    Reed Smith
    Philadelphia, PA 19103-7301
    Peter L. Zimroth
    Arnold & Porter
    New York, NY 10022-4690
    Attorneys for Respondent Wyeth Corp. f/k/a American
    Home Products Corporation
    Fred S. Longer
    Arnold Levin
    Michael D. Fishbein
    Levin, Fishbein, Sedran & Berman
    Philadelphia, PA l9l06
    Attorneys for Respondents Plaintiffs’ Management
    Committee and Plaintiffs’ Class Counsel
    Wm. Terrell Hodges, John F. Keenan, Robert L. Miller, Jr., D.
    Lowell Jensen, Kathryn H. Vratil, J. Frederick Motz and David
    R. Hansen and Harvey Bartle, III,
    Nominal Respondents
    OPINION OF THE COURT
    SLOVITER, Circuit Judge
    The petitioners in this mandamus proceeding, all
    represented by the same counsel, are several thousand of the
    2
    approximately 30,000 to 35,000 plaintiffs with suits currently
    pending before the United States District Court for the Eastern
    District of Pennsylvania (“the MDL Court”) as part of the
    Multidistrict Diet Drug Product Liability Litigation, MDL-1203.
    The Judicial Panel on Multidistrict Litigation (“JPML”)
    transferred petitioners’ cases to the MDL Court for coordinated
    or consolidated pretrial proceedings under 28 U.S.C. § 1407(a).
    Petitioners contend that the generic or common discovery phase
    has concluded in MDL-1203, and thus they moved the JPML to
    remand their cases for case-specific discovery and trial in the
    federal district courts from which they were transferred (“the
    transferor courts”). The JPML refused to remand because it
    determined that MDL-1203 continues to promote the just and
    efficient conduct of proceedings in the diet-drug cases, and the
    MDL Court itself had declined to suggest the remand of
    petitioners’ cases. Petitioners argue that the JPML committed a
    clear error of law because a remand was required under §
    1407(a) once pretrial proceedings had concluded on issues
    common to all cases. Petitioners ask, therefore, that we grant
    mandamus and direct the JPML to return their cases to the
    transferor courts for further proceedings.1
    I.2
    1
    In a separate opinion filed today, we address an alternative
    mandamus request by a subset of these same petitioners for a
    remand of their cases to the state courts where most, if not all, of
    them originated. See In re Briscoe, C.A. No. 04-4086. The
    common thread between the petitioners before us and the
    petitioners in In re Briscoe is that they are all represented by the
    Houston, Texas, law firm of Fleming & Associates, LLP.
    2
    The extensive background to the MDL-1203 litigation need
    not be set forth in full, and thus we limit our discussion to the facts
    pertinent to this mandamus request. For additional background, see
    In re Briscoe, C.A. No. 04-4086; In re Diet Drugs, 
    401 F.3d 143
    (3d Cir. 2005); In re Diet Drugs, 
    385 F.3d 386
    (3d Cir. 2004); In re
    Diet Drugs, 
    369 F.3d 293
    (3d Cir. 2004); In re Diet Drugs, 
    282 F.3d 220
    (3d Cir. 2002).
    3
    On September 15, 1997, respondent Wyeth (then known
    as American Home Products Corporation) withdrew from sale
    on the United States market its widely prescribed appetite
    suppressants, or “diet drugs,” which were sold under the trade
    names of Pondimin and Redux. Approximately six million
    people in the United States had taken one or both of the diet
    drugs, which studies have linked to, inter alia, valvular heart
    damage. After the diet drugs were withdrawn from the market,
    thousands of lawsuits were filed against Wyeth in state and
    federal courts nationwide.
    In December 1997, the JPML created MDL-1203 and
    transferred the pending federal cases to the MDL Court “for
    coordinated or consolidated pretrial proceedings.” 28 U.S.C. §
    1407(a). In early 1998, the MDL Court formed a Plaintiffs’
    Management Committee to coordinate discovery and other
    activities, and it appointed a Special Discovery Master under
    Federal Rule of Civil Procedure 53. The MDL Court also
    established numerous requirements for the conduct of discovery,
    including deposition guidelines, a requirement that plaintiffs
    complete a fact sheet regarding their individual claims, a list of
    medical providers, and the submission of medical authorizations
    to release patients’ records.3 The MDL Court created a
    document depository through which discovery materials are
    made available to transferor courts upon the remand of cases.
    The MDL Court further established a system through which each
    case transferred to MDL-1203 receives a Discovery Initiation
    Date, which sets in motion a timetable for the completion of fact
    and expert discovery. Significantly, the MDL Court from its
    inception envisioned that the conduct of pretrial proceedings in
    MDL-1203 would encompass fact and expert discovery that was
    both generic (i.e., of widespread application to many cases) and
    case-specific (i.e., that pertained solely to an individual
    plaintiff’s claims).
    3
    On July 23, 2003, the MDL Court updated the initial
    disclosure requirements, including the adoption of a revised fact
    sheet and medical authorization form.
    4
    In April 1999, Wyeth and counsel for plaintiffs in the
    then-pending state and federal court actions began global
    settlement talks. In November 1999, after almost two years of
    extensive liability discovery as part of the MDL-1203
    proceedings, the parties reached a tentative Nationwide Class
    Action Settlement Agreement (“Settlement Agreement”). The
    proposed class of plaintiffs included all persons in the United
    States, including their representatives and dependents, who had
    ingested either or both of the diet drugs. The MDL Court held a
    hearing on fairness, and on August 28, 2000, it certified the class
    and approved the Settlement Agreement (with four
    amendments).
    Under the settlement terms, Wyeth agreed to pay up to
    $3.75 billion to fund benefits to class members, who agreed in
    return to release Wyeth from all claims (with one exception not
    relevant here) arising out of their ingestion of the diet drugs.
    The Settlement Agreement was also devised to afford medically
    eligible class members the chance to opt out of its terms at
    various points in the future to pursue the alternative of filing suit
    against Wyeth for compensatory damages. Putative class
    members were entitled to opt out from participation in the
    Settlement Agreement by March 30, 2000, and thereby forego all
    benefits and restrictions conferred under the Settlement
    Agreement by excusing themselves from class membership.
    Diet-drug users who did not exercise this initial opt-out right
    became class members but were afforded subsequent
    opportunities, if medically eligible under criteria specified by the
    terms of the Settlement Agreement, to exercise a so-called
    “downstream” opt-out right.4 In re Diet Drugs 
    369 F.3d 293
    ,
    299 (3d Cir. 2004). Class members who choose to opt out
    4
    The downstream opt out could be exercised at
    “intermediate” or “back-end” stages. The petitioners before us
    have not specified whether they are intermediate or back-end opt-
    outs, but their counsel note that there is no legal distinction
    between the two categories for purposes of this mandamus
    proceeding. We thus refer to petitioners generically as
    “downstream” opt-outs.
    5
    downstream receive no compensation under the Settlement
    Agreement but are permitted to file suit against Wyeth and
    others with certain restrictions, the most prominent of which is a
    bar against seeking an award of punitive damages. In return for
    the limitation on available damages, Wyeth agreed not to assert,
    inter alia, a statute of limitations defense to the actions.
    The thousands of downstream opt-out petitioners
    presently before us filed suit against Wyeth and other
    defendants. Some petitioners filed suit individually, although
    many had joined in multi-plaintiff complaints. It appears that
    all, or almost all, of the petitioners originally filed their actions
    in state courts between 2002 and 2004. Wyeth removed the suits
    to federal court. The JPML then transferred the cases, the
    majority of which had been docketed in the federal district courts
    in Texas, to MDL-1203. The rest of petitioners’ suits were
    transferred from federal district courts in twenty different states.
    Before petitioners’ cases arrived in MDL-1203, the MDL
    Court initiated a program for suggesting the remand of actions
    that had completed coordinated pretrial proceedings.5 In May
    2001, the MDL Court entered Pretrial Order (“PTO”) No. 1962
    in which it noted that many of the then-pending cases had
    completed discovery on the issues amenable to resolution in
    MDL-1203. The MDL Court promptly suggested approximately
    thirty-eight cases for remand.
    5
    After a case completes the pretrial process in an MDL
    proceeding, it is remanded to the transferor district court for any
    remaining proceedings and trial. 28 U.S.C. § 1407(a). The MDL
    court has no authority to remand a case on its own; rather, the
    JPML must order the remand. In re Roberts, 
    178 F.3d 181
    , 184 (3d
    Cir. 1999). The transferee court nevertheless plays a vital role in
    the remand process by entering an order in which it suggests to the
    JPML that a case is ready for remand. “A suggestion to remand
    from the [MDL] court provides the indication that the coordinated
    or consolidated pretrial proceedings assigned to it by the [JPML]
    have been successfully completed.” 17 James Wm. Moore et al.,
    Moore’s Federal Practice ¶ 112.07[3][a] (3d ed. 2005).
    6
    Since May 2001, the number of plaintiffs with cases
    pending in MDL-1203 has increased dramatically – from some
    3,000 in 2001 to approximately 30,000 to 35,000 as of January
    2006. This growth in the MDL-1203 docket appears to have
    stemmed largely from the structure of the Settlement Agreement
    itself, which allows class members to opt out “downstream.”
    Class members were required to exercise an intermediate opt-out
    right by May 3, 2003. Prior to that time, the cases in MDL-1203
    were brought mainly by putative class members who had opted
    out at the initial, pre-class certification stage. After approval of
    the Settlement Agreement, tens of thousands of diet-drug users
    exercised downstream opt-out rights and filed suit against
    Wyeth.6 Wyeth subsequently removed a substantial number of
    those suits from state to federal court.7 The JPML transferred
    the cases for inclusion in MDL-1203, which explains the
    increased caseload. Moreover, many of the cases came to MDL-
    1203 as multi-plaintiff actions. In March 2004, as part of an
    effort to facilitate the administration of its docket and to resolve
    misjoinder issues, the MDL Court ordered the severance of all
    multi-plaintiff suits and directed each plaintiff to file a Severed
    and Amended Complaint.8 Consequently, numerous multi-
    plaintiff actions are now proceeding as individual suits, a fact
    reflected in the substantial number of pending cases.
    Petitioners contend that the increased caseload has
    rendered the MDL Court unable to continue with its 2001
    program of suggesting remand for cases that have completed
    common discovery. They argue that there is only “plaintiff-
    6
    Petitioners have estimated that “some 60,000 to 70,000
    class members” opted out of the Settlement Agreement to pursue
    litigation against Wyeth.
    7
    Petitioners contend that the removals were improper, an
    issue raised in the companion case of In re Briscoe, C.A. No. 04-
    4086.
    8
    Notably, the MDL court’s severance of the actions is
    without prejudice to any party’s right to request consolidation of
    the severed actions upon remand to the transferor court for trial.
    7
    specific” discovery to be completed in numerous pending suits,
    like their own. Petitioners claim that MDL-1203 has become an
    inefficient vehicle for managing the diet-drug cases. Moreover,
    they argue that their suits must now be remanded to the
    transferor courts as a matter of law because generic liability
    discovery has been completed.
    In May 2003, petitioners filed a motion with both the
    JPML and the MDL Court seeking to dissolve MDL-1203 and
    asking for a remand of all pending cases to the transferor courts,
    including cases in which Fleming & Associates, LLP (“the
    Fleming firm”) was not counsel.9 On August 25, 2003, the MDL
    Court rejected the motion, which it treated as a request for a
    suggestion of remand. The Court noted that while generic
    liability discovery had ended, pretrial proceedings on common
    factual questions had yet to be completed. The MDL Court
    observed that proceedings were ongoing in most, if not all, cases
    pending in MDL-1203, and the MDL Court had recently
    streamlined its discovery process. Furthermore, the nature of the
    ongoing discovery was generally similar from case to case,
    thereby making MDL-1203 effective in providing consistency
    and reducing duplication of effort and expense.
    The Court added that remand, or dissolution of MDL-
    1203, would be premature because issues common to all pending
    cases continually arise. The Court twice had enjoined
    downstream opt-out plaintiffs from pursuing punitive damages
    against Wyeth in violation of the Settlement Agreement. If
    punitive damages were awarded in downstream cases, Wyeth’s
    financial viability could be jeopardized, leaving many diet-drug
    plaintiffs unable to recover compensation for their injuries. The
    MDL Court found it critical that it continue to supervise the
    active MDL-1203 cases to ensure a unified interpretation of the
    Settlement Agreement and a consistent enforcement of its terms.
    The Court also anticipated that issues related to the eligibility of
    9
    Counsel for additional petitioners also filed remand
    motions with the MDL court, but those petitioners are not parties
    to this mandamus proceeding.
    8
    class members to opt out would arise, the resolution of which
    requires a uniform and consistent application of detailed medical
    criteria. Finally, the MDL court noted that it had faced common
    patterns in allegations that plaintiffs had fraudulently joined
    defendants to defeat federal jurisdiction, raising issues that touch
    upon many cases. Thus, the Court declined to suggest either
    dissolution of MDL-1203 or a remand of its pending cases.
    On October 30, 2003, the JPML also rejected petitioners’
    motion, noting that the Plaintiffs’ Management Committee,
    among others, was opposed to petitioners’ request for a remand.
    The JPML found that centralization continued to serve the
    convenience of parties and witnesses and to promote the just and
    efficient conduct of the litigation. It observed that the MDL
    Court remains in the best position to set the future course for the
    diet-drug cases. Because the MDL Court had declined to
    suggest a remand, the JPML was unconvinced that it should
    compel one.
    According to petitioners, they then waited eighteen
    months with the expectation that their cases would be suggested
    for remand. In November 2004, petitioners sought another
    suggestion of remand, again arguing that case-specific discovery
    was all that remained and that retention of their cases was no
    longer justified. Petitioners stated that “[w]ith the exception of
    perhaps cardiology experts, every witness left to depose, every
    document left to produce and every medical record left to review
    are all located in Plaintiffs’ home states, not in Philadelphia,
    Pennsylvania.” App. at 268. Unlike in their prior motion,
    petitioners did not request a dissolution of MDL-1203, and they
    sought a suggestion of remand in their own cases, not all
    pending cases.
    On January 27, 2005, the MDL Court declined to suggest
    a remand, concluding that petitioners’ request was “without
    substance” and premature. App. at 284. The Court explained
    that it promptly enters a suggestion of remand when a case is
    ready for return to a transferor court, and that it would continue
    9
    to follow that practice.10
    On March 30, 2005, Petitioners filed another motion for
    remand with the JPML. They argued, inter alia, that the MDL
    court’s remand program was at a “virtual standstill,” as
    evidenced by its suggestion of remand in “fewer than 100 cases”
    since 2001.11 App. at 369-70.
    On June 20, 2005, the JPML denied the remand motion.
    It again found that a remand would be inappropriate because
    centralization continues to promote the just and efficient conduct
    of the litigation. The JPML added that the MDL Court had
    “recently overseen the institution of a new settlement process in
    the MDL-1203 
    proceedings.” 12 Ohio App. at 2
    . Absent a suggestion
    10
    The MDL court’s docket reflects that it issued twenty-five
    separate orders between May 2001 and August 2005 in which it
    suggested remands.
    11
    Petitioners’ counsel clarified at argument before this court
    that the MDL Court has remanded “about 150" cases. Oral Arg.
    Tr. at 81. For its part, Wyeth contends that the relatively low
    number of cases remanded is due to the fact that the parties “had
    settled virtually all of the cases in MDL-1203 prior to any such
    remand.” Respondent’s Br. at 11.
    12
    Wyeth describes this “new settlement process” as follows:
    On January 18, 2005, Wyeth and counsel representing a
    number of plaintiffs with cases in MDL 1203 advised [the
    MDL court] that those parties had developed a proposed
    process by which large numbers of cases might be
    negotiated and settled. The process provides a methodology
    for valuing some categories of claims and provides a
    structure for individualized negotiations between Wyeth and
    lawyers representing diet drug claimants. Pursuant to that
    motion, [the MDL court] entered PTO 4389, establishing a
    process by which participating law firms and Wyeth could
    obtain automatic stays of all proceedings in their cases by
    notifying the Special Master that those plaintiffs represented
    10
    of remand from the MDL Court, the JPML found no persuasive
    reason to order one, and it urged petitioners to continue to avail
    themselves of the efficiencies provided by inclusion in MDL-
    1203.
    Petitioners have turned to this court with the filing of
    their petition for a writ of mandamus.
    II.
    The All Writs Act provides that “[t]he Supreme Court and
    all courts established by Act of Congress may issue all writs
    necessary or appropriate in aid of their respective jurisdictions
    and agreeable to the usages and principles of law.” 28 U.S.C. §
    1651(a). The Supreme Court has identified “three conditions”
    by participating law firms had agreed with Wyeth to
    participate in that settlement process. . . . [A]lmost all the
    plaintiffs with cases pending in MDL 1203 have entered
    into such stipulations and are in various stages of settlement
    negotiations.
    On September 2, 2005, [the Fleming firm] and Wyeth
    entered into such a stipulation, which was filed with the
    Court, advising it that [the Fleming firm] had agreed to
    participate in settlement negotiations on behalf of all
    Petitioners [to the present mandamus proceeding]. . . .
    Accordingly, all of the Petitioners’ cases are stayed while
    settlement discussions continue.
    Respondent’s Brief at 8-9.
    According to counsel for petitioners, the settlement
    discussions with Wyeth concluded in December 2005. The
    standstill agreement for petitioners’ cases expired on January 1,
    2006, and discovery recommenced on February 1, 2006. Notably,
    counsel for Wyeth estimated that “about 11,000" MDL-1203 cases
    were settled as part of the new settlement process. Oral Arg. Tr. at
    66.
    11
    that a petitioner must meet before a reviewing court may issue a
    writ of mandamus: the petitioner must establish both that (1)
    there is “no other adequate means” to attain the relief sought and
    (2) a right to the writ that is “clear and indisputable”; and (3)
    even if the first two conditions are met, the reviewing court in its
    discretion must conclude that the writ “is appropriate under the
    circumstances.” Cheney v. U.S. Dist. Court for Dist. of
    Columbia, 
    542 U.S. 367
    , 380-81 (2004) (citations omitted).
    Petitioners have satisfied the first condition to mandamus
    in that they have no other adequate means to attain relief from
    the JPML’s order refusing to remand their cases. Mandamus is
    the sole means through which petitioners can seek review of the
    JPML’s order. See 28 U.S.C. § 1407(e) (“No proceedings for
    review of the panel may be permitted except by extraordinary
    writ pursuant to the provisions of [§ 1651].”). This court is the
    proper venue for the mandamus petition. See 
    id. (“Petitions for
    an extraordinary writ to review an order to transfer or orders
    subsequent to transfer shall be filed only in the court of appeals
    having jurisdiction over the transferee district.”).
    We have observed that because of the “great weight” that
    the JPML places upon an MDL court’s suggestion of remand,
    “only those plaintiffs who actually sought suggestion of remand
    from the [MDL] court have satisfied the first prong of the
    mandamus inquiry.” In re Patenaude, 
    210 F.3d 135
    , 142 (3d Cir.
    2000). Here, the parties do not dispute that all of the petitioners
    joined in the second request that the Fleming firm filed in the
    MDL court for a suggestion of remand. The MDL court denied
    that request on the merits. Petitioners have thus met the first
    condition to mandamus. We focus, then, on whether they have a
    clear and indisputable right to a remand of their cases.
    III.
    The second condition to mandamus requires a showing
    that the court under review “committed a clear error of law at
    least approaching the magnitude of an unauthorized exercise of
    judicial power, or a failure to use that power when there is a duty
    to do so.” In re Federal-Mogul Global, Inc., 
    300 F.3d 368
    , 384
    12
    (3d Cir. 2002) (quotation marks and citation omitted). In
    addition, “mandamus can apply to discretionary acts where
    petitioners can demonstrate a ‘clear abuse of discretion.’”
    
    Patenaude, 210 F.3d at 141
    (quoting Mallard v. U.S. Dist. Court,
    
    490 U.S. 296
    , 309 (1989)).
    In arguing that the JPML committed a clear error of law
    by failing to order a remand, petitioners rely upon the language
    of § 1407(a), which provides:
    When civil actions involving one or more common
    questions of fact are pending in different districts, such
    actions may be transferred to any district for coordinated
    or consolidated pretrial proceedings. Such transfers shall
    be made by the judicial panel on multidistrict litigation
    authorized by this section upon its determination that
    transfers for such proceedings will be for the convenience
    of parties and witnesses and will promote the just and
    efficient conduct of such actions. 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: Provided, however, That the panel
    may separate any claim, cross-claim, counter-claim, or
    third-party claim and remand any of such claims before
    the remainder of the action is remanded.
    28 U.S.C. § 1407(a) (emphasis added).
    Petitioners contend that the JPML failed to comply with §
    1407(a) by refusing a remand at what they claim was the
    conclusion of “coordinated or consolidated pretrial
    proceedings” in MDL-1203. Mandamus Ptn. at 12.
    Significantly, petitioners do not appear to dispute that the
    ongoing MDL-1203 proceedings qualify as “pretrial” in nature,
    as those proceedings have primarily involved discovery in
    individual cases and the recent settlement process. See
    
    Patenaude, 210 F.3d at 144
    (discussing the meaning of “pretrial”
    under § 1407(a) and holding settlement conferences are pretrial
    proceedings). Rather, petitioners’ challenge is directed to
    13
    whether the proceedings can be considered “coordinated or
    consolidated” in light of the fact that generic liability discovery
    concluded years ago. Petitioners argue that the recent settlement
    process lacked judicial oversight, and that MDL treatment is
    unnecessary when remaining discovery is case specific. They
    contend that the MDL process only serves to delay the resolution
    of their cases.
    Although petitioners argue that our decision in Patenaude
    supports their position, that case clearly cuts the other way. In
    Patenaude, plaintiffs with injuries allegedly suffered from
    asbestos exposure had their actions transferred to a multidistrict
    litigation, where the cases remained for several years as part of a
    pretrial process that did not involve global 
    discovery. 210 F.3d at 138-39
    . The discovery in Patenaude related to a pending class
    action, individual or groups of claims, and to “litigation
    screening companies, the physicians they employ, and the nature
    of their contracts with plaintiffs’ firms.” 
    Id. at 139.
    In addition,
    the MDL judge was actively engaged in the process of seeking
    to settle pending cases. 
    Id. at 139-40.
    A group of plaintiffs
    sought mandamus to compel a remand of their cases to the
    transferor courts, arguing that “coordinated or consolidated”
    under § 1407(a) should be interpreted to mean that pretrial
    proceedings are at an end when an MDL court “ceases to
    conduct proceedings common to all.” 
    Id. at 143-44.
    Looking to the guidance provided by the Supreme Court’s
    decision in Lexecon, Inc. v. Milberg Weiss Bershad Hynes &
    Lerach, 
    523 U.S. 26
    (1998), this court rejected the petitioners’
    narrow reading of the statutory language, concluding instead that
    the phrase “‘coordinated or consolidated’ is to be interpreted
    broadly.” 
    Id. at 142
    (citing 
    Lexecon, 523 U.S. at 33-34
    ).
    Indeed, we observed that “a proceeding that relates only to a
    single individual’s case or claim can nonetheless be
    coordinated,” as coordination can be found even if common
    issues are present only in relation to cases that have already
    
    terminated. 210 F.3d at 143
    . Moreover, “[t]o be coordinated, it
    is not necessary that common issues are being
    contemporaneously addressed” or that “any one issue be
    common to all cases, so long as issues ‘overlap.’” 
    Id. at 143
    14
    (citing 
    Lexecon, 523 U.S. at 34
    ). Applying these principles, we
    denied the mandamus petition in Patenaude because, inter alia,
    overlapping issues “ha[ve] been considered”: the
    transferee court oversaw the initial attempts at global
    settlement and set forth procedures applicable to all
    regarding the mandatory exchange of information, the
    [settlement] negotiation process, and the prioritizing of
    cases. Moreover, the transferee court continues to
    conduct discovery regarding the use of litigation
    screenings that overlaps many of the cases in MDL-875.
    Although there is no allegation that litigation screenings
    were conducted in any of the plaintiffs’ individual cases,
    this issue is common to many cases from many different
    transferor 
    districts. 210 F.3d at 144
    (citations omitted). We held that “because
    individual settlement negotiations and conferences are ongoing
    in the plaintiffs’ individual cases, and because the transferee
    court is conducting discovery on overlapping issues that affect
    many asbestos cases, even if not the plaintiffs’, coordinated
    pretrial proceedings have not concluded[.]” 
    Id. at 146.
    Petitioners here likewise seek to equate the completion of
    common discovery with the end of “coordinated or
    consolidated” proceedings. As we made clear in Patenaude, the
    test is not whether proceedings on issues common to all cases
    have concluded; it is whether the issues overlap, either with
    MDL cases that have already concluded or those currently
    pending. Moreover, the overlapping issues do not necessarily
    need to touch the petitioners’ particular cases. Under this
    standard, we find adequate evidence that the proceedings in
    MDL-1203 qualify as “coordinated or consolidated.”
    Just prior to the filing of petitioners’ second request for a
    remand with the JPML, the MDL Court established a process for
    plaintiffs to seek an automatic stay in order to pursue settlement
    negotiations with Wyeth. Within days after commencing this
    mandamus proceeding, petitioners themselves committed to the
    process and stipulated to a stay of their cases. Given its
    15
    familiarity with the diet-drug litigation, the MDL court was, as
    the JPML concluded, best positioned to aid the discussions
    between the plaintiffs and Wyeth. While the Fleming firm
    apparently did not settle the cases of any of the petitioners before
    us, Wyeth has estimated that “about 11,000” cases were settled
    as a result of the process. Oral Arg. Tr. at 66.
    Petitioners argue that no court-managed negotiations took
    place, a fact that they view as pertinent in distinguishing the
    MDL-1203 process from Patenaude. Petitioners note that “all
    settlement negotiations [we]re private discussions, involving
    discrete groups of claimants represented by separate law firms,
    and not overseen by the MDL court.” Mandamus Ptn. at 18. In
    Patenaude, the MDL judge was actively involved in prioritizing
    the cases on its docket and in directing the parties into a process
    for the discussion of settlement, with a focus on addressing the
    claims of the most seriously ill plaintiffs 
    first. 210 F.3d at 140
    .
    The court established procedures for the exchange of
    information and the negotiation of settlements, and if the
    settlement process failed, the court considered whether
    immediate remand to the transferor court was appropriate. 
    Id. The court’s
    active management of the settlement process
    resulted “in numerous cases being resolved” as well as the
    remand of a substantial number of cases to the transferor courts.
    
    Id. Petitioners are
    correct that the MDL Court here played a
    far less active role in the settlement process than was the case in
    Patenaude. Nevertheless, our determination in Patenaude that §
    1407(a) was satisfied did not hinge on the MDL judge having
    engaged in centralized management of the negotiations. Rather,
    we held that the phase “coordinated and consolidated” was broad
    enough to include the conduct of individual, non-global
    settlement negotiations, which in Patenaude happened to be
    conducted under the close supervision of the MDL judge.
    Here, in addition to granting automatic stays, the MDL
    Court authorized the Special Master to schedule status
    conferences involving Wyeth, counsel for the plaintiffs, and
    members of the Claims Facilitating Committee so that it could
    16
    remain updated on the settlement process. Because of its
    familiarity with the diet-drug litigation, the MDL court (or its
    Special Master) was in a better position than any transferor court
    to facilitate discussions between the plaintiffs and Wyeth should
    the need have arisen. We recognized in Patenaude that a remand
    may be refused “where the possibility exists that even individual
    settlement negotiations will be more efficient if facilitated by a
    judge who is intimately familiar with the general issues and
    many of the 
    parties.” 210 F.3d at 145
    . In short, the settlement
    process – inasmuch as it was facilitated by the Court’s
    willingness to stay proceedings in the MDL-1203 cases; likely
    came about because of the existence of MDL-1203; involved
    numerous plaintiffs; and was highly successful in resolving cases
    – was a “coordinated” proceeding under § 1407(a).
    Petitioners also argue that the discovery proceedings in
    MDL-1203 are insufficient to satisfy § 1407(a). The record
    reflects otherwise. The MDL Court has established a
    comprehensive discovery schedule, which includes a procedure
    for the conduct of fact and expert depositions for witnesses who
    are expected to testify in more than twenty-five cases. The
    Special Master has assigned each Severed and Amended
    Complaint a Discovery Initiation Date (“DID”) and set deadlines
    for the completion of discovery in those cases.13 As of
    September 2005, DIDs were set in approximately 6,700 cases
    with plaintiffs represented by the Fleming firm. Some 1,200 of
    those cases had a DID of December 1, 2004, or earlier, meaning
    they were scheduled for the completion of discovery no later
    than November 1, 2005. Approximately 4,400 of the cases had
    DIDs of August 1, 2005.
    Moreover, the substantive issues in discovery overlap.
    The Fleming firm designated one medical expert, Dr. Gerard
    Polukoff, in more than 350 of its cases. Several other medical
    13
    Plaintiffs who have been diagnosed with a serious medical
    condition (including Primary Pulmonary Hypertension and valvular
    heart disease of sufficient severity) are eligible to be considered on
    an expedited basis for remand.
    17
    experts are designated in multiple cases. In addition, after
    plaintiffs argued that Wyeth should be required to pay the
    Fleming firm’s experts for time spent reviewing medical records
    prior to depositions, the Special Master issued a single ruling
    that resolved this issue and was applicable to all pending
    Fleming cases.
    Wyeth also contends (and petitioners do not dispute) that
    “large numbers of plaintiffs [were] diagnosed with valvular heart
    disease in mass echocardiogram screening operations organized
    by plaintiffs’ counsel law firms. The manner in which those
    screening operations were conducted involves common issues
    among all the plaintiffs screened in the same echocardiogram
    operation.” Respondent’s Br. at 12. Discovery on this issue is
    akin to the proceedings in Patenaude regarding the plaintiffs’ use
    of litigation screening companies. See 
    Patenaude, 210 F.3d at 139
    . Indeed, Wyeth notes that depositions of the physicians who
    were involved in the mass echocardiogram screenings involve
    witnesses “who read hundreds or even thousands of
    echocardiograms and accordingly may give testimony relevant to
    large numbers of MDL cases.” 14 Respondent’s Br. at 15.
    Finally, the MDL court observed that issues common to many
    cases continue to arise, such as questions of enforcement and the
    eligibility of class members to opt out. The latter issue requires
    making an assessment of the medical requirements specified
    under the terms of the Settlement Agreement to ensure that the
    opt out is proper.
    On this record, petitioners cannot meaningfully
    distinguish the discovery proceedings in MDL-1203 from the
    proceedings we deemed coordinated in Patenaude. Moreover,
    petitioners have failed to show that MDL-1203 no longer serves
    its purpose of promoting the just and efficient conduct of
    14
    When asked at the oral argument to identify remaining
    overlapping issues, Wyeth responded that “we have had massive
    fraud on the part of plaintiffs. We have had massive instances of
    diagnoses based on improperly taken echocardiograms.” Oral Arg.
    Tr. at 62. We, of course, express no opinion on this issue.
    18
    litigation concerning the diet drugs.
    In Lexecon, the Supreme Court made it clear that §
    1407(a) “obligates” the JPML to remand “when, at the latest,
    th[e coordinated or consolidated] pretrial proceedings have run
    their 
    course.” 523 U.S. at 34-35
    . The JPML’s obligation to
    remand at that time is “impervious to judicial discretion.” 
    Id. at 35.
    However, when, as here, a remand is sought before the
    conclusion of coordinated or consolidated pretrial proceedings,
    the JPML’s authority is discretionary. As we stated in
    Patenaude,
    Section 1407 expressly allows for remand “at or before
    the conclusion of . . . pretrial proceedings.” Clearly, the
    [JPML] has the discretion to remand a case when
    everything that remains to be done is case-specific. This
    does not mean that consolidated proceedings have
    concluded at the point that only case-specific proceedings
    remain; rather, the court can at that point exercise its
    discretion to remand “before the conclusion of pretrial
    
    proceedings.” 210 F.3d at 145
    (quoting § 1407(a)). The JPML retains
    “unusually broad discretion” to carry out its functions, including
    “substantial authority . . . to decide how the cases under its
    jurisdiction should be coordinated.” In re Collins, 
    233 F.3d 809
    ,
    811-12 (3d Cir. 2000).
    Although petitioners argue in the alternative that it was a
    clear abuse of discretion for the JPML to refuse a remand, we
    are satisfied that the JPML acted within its authority, particularly
    given the absence of any suggestion from the MDL Court that a
    remand of petitioners’ cases would be appropriate. “[T]he
    presence or absence of a remand recommendation from the
    transferee judge as a factor in the [JPML]’s decision-making
    process seems entirely reasonable.” 
    Patenaude, 210 F.3d at 146
    .
    It is true, as petitioners note, that almost five years have
    passed since the MDL court entered its first order suggesting a
    remand of MDL-1203 cases. But we see no evidence that
    19
    petitioners’ cases have languished impermissibly on the MDL
    Court’s docket. Moreover, petitioners’ cases were transferred to
    MDL-1203 after they exercised a downstream opt-out right, and
    their suits have not been pending for the entire five-year period.
    In any event, the current state of the MDL-1203 proceedings
    square with the requirements of § 1407(a). Like the JPML, we
    urge petitioners to continue to avail themselves of the
    efficiencies provided by inclusion in MDL-1203.
    IV.
    All parties recognize that these cases must eventually be
    returned to their transferor courts and the only issue is when.
    We recognize the petitioners’ frustration in the MDL court’s
    reluctance to suggest remand at this time. We will of course
    continue to monitor the status as cases continue to raise the
    issues, but we believe the standards of mandamus continue to
    limit our ability and inclination to decide otherwise at this time.
    We have considered petitioners’ remaining arguments but
    conclude that they are without merit and in need of no separate
    discussion. Because petitioners have not shown a clear and
    indisputable right to relief, we will deny their mandamus
    petition.
    ____________________________
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