                                                                                                                           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Precedential or Non-Precedential: Precedential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




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                                             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 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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