Friday, July 23, 2010
Next week, on July 29, the Multi-district Litigation Panel, a panel comprised of seven judges throughout the country, will gather to determine where to transfer the cases filed against BP arising from the oil spill. (In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL No. 2179) The cases on the docket include around 24 from Alabama, 10 from Florida, 33 from Louisiana, 8 from Mississippi, and 2 from Texas.
Despite the spate of new articles, the story hasn't changed much in the past few months. Plaintiffs' attorneys are, by and large, pushing for New Orleans where they suspect that a potential jury pool would be hostile to the oil industry. And, not surprisingly, defendants are pushing for a Houston venue, in the heart of the oil industry. Much the same scenario plays out in less high-profile cases on a regular basis.
Plus, the MDL Panel doesn't always choose a side. For example, the MDL Panel in the In re Silicone Gel Breast Implant Products Liability Litigation in the early 1990s sent the cases to the Northern District of Alabama despite a push by plaintiffs for the Northern District of California or the District of Kansas and a push by defendants (and a few plaintiffs) for the Southern District of Ohio. Of course, just as in BP's case, the litigants in the Breast Implant litigation urged the Panel to appoint a particular judge (i.e., Judge Henderson or Patel in the Northern District of California or Judge Kelly from Kansas). Back then, the Panel noted in its order that either Ohio or California would be an appropriate forum, but it was "troubled" "by the volume and tone of the negative arguments with which opposing counsel have sought to denigrate each other's forum choices, litigation strategies, and underlying motives." 793 F. Supp. 1098 (JPML 1992).
The same logic seems to apply with equal force to the BP oil spill litigation, so it wouldn't come as a huge surprise if the Panel rejected Louisiana and Texas as a forum. That said, as someone who's written about the value of process and, in particular, about the value of participating in process as a vital component of procedural justice, I would hope that the Panel's forum selection wouldn't undermine the ability of those plaintiffs with fewer resources to participate. And by "plaintiffs" I do mean the plaintiffs themselves, not just their attorneys who will certainly participate regardless of where the lawsuits land.