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Judges commonly appoint “judicial adjuncts” in MDLs to assist with different stages of the litigation, including pretrial, settlement, and post-settlement. Coined by Professor Linda Silberman, the term “judicial adjuncts” refers to a number of actors including, among others, magistrate judges, special masters, mediators, and various settlement-related administrators. Linda Silberman, Judicial Adjuncts Revisited: The Proliferation of Ad Hoc Procedure, 137 U. Pa. L. Rev. 2131, 2131–32 (1989).
This module focuses on how courts deploy two of the most common and versatile types of adjuncts: magistrates and special masters. Instead of focusing on one or a few specific inflection points in the MDL, transferee courts may deploy both magistrates and special masters to assist with tasks throughout the course of the litigation, and in practice, many MDL judges look to one or both types of adjuncts as vital partners in facilitating an efficient and fair MDL proceeding. For discussions regarding other types of adjuncts, including claims administrators and other settlement-focused adjuncts, see the common benefit fee module and the facilitating and structuring settlement module.
MDL judges have considerable discretion to appoint magistrate judges and special masters according to their own case management preferences and the needs of the litigation. In appointing these adjuncts, transferee courts must balance their value in helping the court navigate thorny and time-consuming topics, ranging from discovery to settlement negotiations and disbursements (among many other issues), against “over-delegation, as excessive delegation can make management and coordination more difficult and add unduly to the parties’ expenses.” Bolch J. Inst., Duke L. Sch., Guidelines And Best Practices for Large and Mass-Tort MDLS 4 (2d ed., 2018) [hereinafter Bolch Guidelines].
This module starts with a review of some basic considerations that transferee judges take into account when appointing magistrates and special masters. It then discusses the various roles and responsibilities assigned to each of these adjunct types.
For more on judicial adjuncts, see Fed. Jud. Ctr., Manual for Complex Litigation (4th ed. 2005) § 10.14 [hereinafter MCL]; Bolch Guidelines, supra at 4; Elizabeth Chamblee Burch & Margaret S. Williams, Judicial Adjuncts in Multidistrict Litigation, 120 Colum. L. Rev. 2129 (2020).
Many judges appoint judicial adjuncts to assist with the administration of MDLs. In Professor Elizabeth Burch and Margaret Williams’s comprehensive study of product liability MDLs, they determined that adjuncts were appointed in 73 of 91 MDL proceedings (80%). Burch & Williams, supra at 2153.
In those 73 proceedings, transferee judges appointed a total of 233 adjuncts, with an average of 3 adjuncts per MDL. Id. Of those 233 adjuncts, 59 were special masters (25%), 59 were magistrate judges (25%), with the remainder composing other types of adjuncts, including claims administrators and mediators. Id. at 2154.
MDL judges turn to different sources of authority when delegating tasks to magistrate judges and special masters.
Magistrate Judges. The authority to delegate tasks to magistrate judges is derived from the Federal Magistrates Act of 1968, codified at 28 U.S.C. § 636 and 18 U.S.C. § 3401, and Article I of the U.S. Constitution. Under this well-established principle, MDL judges routinely designate tasks to magistrates, as they would in any other civil proceeding.
DISCOVERY—All discovery disputes are referred to the Honorable Mary E. Stanley, United States Magistrate Judge.
Special Masters. The authority to delegate authority to a special master, by contrast, is primarily provided by Federal Rule of Civil Procedure 53. That rule provides that, with the consent of the parties, a special master may be appointed to “address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed. R. Civ. P. 53(a).
Rule 53 establishes multiple requirements that an order appointing a magistrate must satisfy, including providing notice to the parties and an opportunity to be heard.
In addition, when appointing special masters, some courts invoke court’s inherent authority.
Rule 53 was amended on December 1, 2003, and now requires an order of appointment to include certain contents. See Fed. R. Civ. P. 53(b)(2). The following discussion sets forth the matters required.
IT IS ORDERED that the Joint Motion for Appointment of a Special Master (Rec. Doc. 23066) is GRANTED. The Court APPOINTS as Special Master:
This appointment is made pursuant to Rule 53 of the Federal Rules of Civil procedure and the inherent authority of the Court. As Rule 53 requires, the Court sets out below the duties and terms of the Special Master and reasons for appointment, and ORDERS the Special Master to “proceed with all reasonable diligence,” Rule 53(b)(2).
[proceeding to address the requirements of Rule 53]Transferee judges consider numerous factors when deciding whether to appoint a magistrate judge or special master to handle elements of an MDL. In deciding whether to appoint a magistrate judge, for example, relevant factors may include: “the district judge’s own estimate of the amount of time needed for particular tasks and the district judge’s willingness to assign particularly time-consuming tasks to a judicial colleague;” “the perceived degree of specialized training or experience needed to perform a particular task;” “local customs and culture;” and “the availability of particular individuals to serve as special masters.” George C. Hanks, Jr., The Role of Magistrate Judges in Federal Multi-District Litigation, 99 Judicature 47, 50–51 (2022).
For both magistrate judge and special master appointments, the MCL outlines a list of factors for an MDL judge’s consideration:
MCL, supra at 13.
As reflected above, a north star for transferee courts weighing whether to appoint a magistrate judge or special master is the extent to which doing so will promote the efficient administration of the MDL. It may be tempting to assume that the addition of an adjunct automatically renders proceedings more efficient, given the additional administrative help they can offer. But some scholarship casts doubt on this assumption. Professor Abbe Gluck, for instance, has interviewed numerous MDL judges and found that many “volunteered—without being questioned on this topic” that “they generally do not give work to magistrates in MDL cases,” including because “any appeal from a magistrate decision requires a written opinion from the federal judge,” which can slow down an MDL’s progress. Abbe R. Gluck, Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook Understandings of Procedure, 165 U. Penn. L. Rev. 1669, 1693–94 (2017).
It is commonly understood that magistrate judges are “capable of performing virtually any task that a district judge may delegate.” Hanks, supra at 48. In non-MDL cases, magistrate judges are frequently tasked with overseeing pretrial and discovery matters and acting as early neutral evaluators or mediators. Id.
The same is true in MDLs: Judges frequently appoint magistrates to handle discovery disputes and pretrial matters, and to oversee mediations. The MCL provides a list of tasks that may be delegated to magistrate judges, including:
supervision of all discovery matters or supervision of particular discovery issues or disputes, particularly those that may be time-consuming or require an immediate ruling (including resolving deposition disputes by telephone; ruling on claims of privilege and motions for protective orders; and conducting hearings on procedural matters, such as personal jurisdiction).
MCL, supra at 14. “Magistrate judges may also help counsel formulate stipulations and statements of contentions, and may facilitate settlement discussions.” Id.
Pretrial Order No. 32, In re Zantac (Ranitidine) Prods. Liab. Litig., MDL No. 2924 (2020) (delegating discovery disputes to a magistrate judge).
To assist the Court and the parties in this multidistrict litigation proceeding accomplish and timely complete pretrial discovery efficiently and without undue delay and unnecessary expense, the Court intends to refer certain discovery disputes to Magistrate Judge Bruce E. Reinhart, as set forth in greater detail below.
[proceeding to describe discovery disputes]
Judge Goodman shall preside over all discovery matters…
Order, In re Aredia and Zometa Prods. Liab. Litig., MDL No. 1760 (M.D. Tenn. Apr. 20, 2006).
Pursuant to the Transfer Order (Docket No. 1), these consolidated cases are referred to Magistrate Judge Brown for all non-dispositive pretrial matters.
In addition, MDL courts may task magistrate judges with various tasks related to settlement, including serving as settlement masters, and overseeing the final resolution of settled cases.
Mediation-Settlement: Immediate Contact with Magistrate Judge Arthur J. Boylan. Lead Counsel for each party is ordered to separately confer with Magistrate Judge Arthur J. Boylan by calling his chambers at [telephone number], within 10 days of the date of this Order. The purpose of this conference will be to advise Magistrate Judge Boylan in his role as an ADR neutral, on the parties’ positions regarding early settlement efforts on one or more issues. This contact may be ex parte and any communications shall be considered to be strictly confidential and, absent agreement between the parties, shall not be subject to disclosure to other parties, including United States District Judge Donovan W. Frank, assigned to this case, or any other District Judge assigned to one or more cases. Discussion of settlement of one, more than one, or all issues may include, but will not be limited to, any cases identified as representative or so-called bellwether cases; any issues of general applicability that will permit the parties to focus on outcome determinative issues in the case, whether they relate to liability or damages; and any and all issues that promote the efficient administration of this case, including settlement, resolving pretrial issues—be they discovery or other issues—and resolving issues that will promote the early resolution of one or all cases
with or without trial.
IT IS ORDERED that all appeals of claim determinations by the HESI/Transocean settlements claims administrator are hereby REFERRED to United States Magistrate Judge Joseph C. Wilkinson, Jr., for final and binding resolution as provided in the court-approved HESI and Transocean settlement agreements.
[I]t is hereby ORDERED AND DECREED that Magistrate Judge Timothy R. Rice is appointed as the Special Settlement Master for purposes of overseeing the Final Allocation Plan for the Tylenol Settlement.
As noted above, a central factor that courts consider when appointing special masters is the degree to which they will promote the efficient resolution of litigation. Unlike magistrates, who are salaried federal employees appointed by a majority vote of the active district judges of the court, special masters come from a variety of professional backgrounds. Some special masters are lawyers or retired state and federal judges, while others are certified public accountants (CPAs) or other professionals with considerable subject matter expertise. Thus, they may have unique skill sets that magistrates do not possess. Those with technical expertise (e.g., accounting) may be able to more efficiently handle certain tasks than MDL judges or magistrates. See Fed. R. Civ. P. 53 (authorizing the appointment of special masters to “address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district”). The ABA strongly supports the use of special masters in MDLs, noting that using special masters “should be an accepted part of judicial administration.” Am. Bar Ass’n, Resolutions with Reports to the House of Delegates: 2019 Midyear Meeting Resolution 100, at 51 (2019).
Yet, courts shouldn’t appoint special masters reflexively. Many observe that, just as the appointment confers various benefits, it also imposes costs. For example, scholars have noted that a settlement masters’ appointment may delay proceedings and increase expense. Burch & Williams, supra at 2183–86 (reporting that proceedings in which special masters were appointed lasted longer than those without special masters, even when attempting to control for a case’s complexity); id. at 2197 (commenting on the costs of special masters to the parties). Some critics also raise concerns about the risks of delegation generally, noting that the use of an adjunct can introduce bias, lack of transparency, and ad hoc procedures. Id. at 2206–14.
Courts appoint special masters to handle a wide variety of tasks. The ABA lists the following tasks that may be delegated to special masters:
Am. Bar Ass’n, supra at 51; see also, Mark A. Fellows & Roger S. Haydock, Federal Court Special Masters: A Vital Resource in the Era of Complex Litigation, 31 Wm. Mitchell L. Rev. 1269, 1275–84 (2005) (listing tasks delegated to special masters).
Examples of orders appointing special masters to various tasks follow.
Order Appointing Special Master, In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., MDL No. 2785 (D. Kan. Dec. 17, 2018) (appointing special master to handle specific discovery disputes).
Although Mylan and Sanofi have narrowed the number of disputed documents on Sanofi’s privilege log after repeatedly conferring and re-reviewing with the benefit of guidance and orders from the undersigned Magistrate Judge, they remain at odds over 2,086 of the documents. The Court has determined that this matter cannot be effectively and timely addressed by this Court, and has advised Mylan and Sanofi that it will appoint a special master to review the documents remaining in dispute. The Court allowed the parties to suggest persons who might serve as special master for this purpose. They have done so and, pursuant to their report and the Court’s own determination, the Court enters the following Order appointing the Honorable Margaret R. Hinkle (Ret.) as Special Master.
Accordingly, IT IS HEREBY ORDERED that Honorable Margaret R. Hinkle (Ret.) is hereby appointed as Special Master in this case. This appointment is made pursuant to Fed. R. Civ. P. 53 and the inherent authority of the Court. As Rule 53 requires, the Court sets out below the duties and terms of the Special Master and reasons for appointment, and orders the Master to “proceed with all reasonable diligence….
WHEREAS, the Court, having considered the Parties’ written filings, e.g., Docket Nos. 396, 399, and 402, appointed the Honorable Gail A. Andler (Ret.), JAMS, 5 Park Plaza, Suite 400, Irvine, CA 92614, as Special Master for all non- dispositive discovery matters arising in the Governmental Entities and Subrogation Plaintiffs Tracks by order dated May 7, 2024 (“May 7 Order”)…
IT IS HEREBY ORDERED, pursuant to Fed. R. Civ. P. 53, that the Special Master shall proceed with all reasonable diligence to fulfill her duties and responsibilities, as follows:
Order Appointing Discovery Special Master for Non-Discovery Motions, In re Philips Recalled CPAP Bi-Level PAP, and Mechanical Ventilator Prods. Litig, MDL No. 3014 (W.D. Penn. Jan. 18, 2023) (appointing a special master for non-discovery motions).
The court hereby appoints the Honorable Thomas I. Vanaskie as Special Master (“Special Master”) in this matter for the purposes outlined in this Order. The duties of the Special Master with respect to all non-discovery motions, including dispositive motions, referred to the Special Master by the court, shall include the preparation of Report and Recommendations with respect to those motions. The preparation of the Report and Recommendations may include the Special Master holding hearings on the referred motions and the preparation of charts and other documents that aide the court in resolving the referred motion. The court, in its discretion, may refer any non-discovery motion to the Special Master.
The essence of what can be read in the depositions is that the atmosphere was quite clearly intense and heavily partisan. While neither of those things standing alone is illegal by any analysis, time is of the essence and efficiency is essential in the depositions going forward with no time to spare. Neither side can afford to relinquish their zealous advocacy nor spend valuable time sparring over issues that must be resolved. Therefore, the Court finds a need to appoint a special master for the sole purpose of attending depositions. It is the objective of the Court that the presence of the Special Master will allow both sides to approach their professional duties in a manner conducive to an atmosphere of effective and efficient depositions. After all, depositions are court proceedings taken at remote locations designed to elicit evidence in a manner that is conducive to the schedules of the attorneys and witnesses, as well as the Court.
Because of his prior experience and adept skill in performing like duties, the Court APPOINTS Dan Stack, retired Illinois State Circuit Judge.
On March 31, 2001, the parties agreed to the appointment of the Honorable Dan Stack (Ret.) as a Special Master under Fed. R. Civ. P. 53 for mediating and preliminarily resolving disputes that arise in depositions of corporate witnesses taken outside of the United States. [] At the April 12, 2011 status conference the parties reported that the appointment of a Special Master for depositions outside of the United States has been beneficial and expressed an interest in utilizing the Special Master’s services in depositions taking place in the United States as well. The Court concludes that the Special Master appointment has been an advantageous process and should not be limited to depositions of corporate witnesses taken outside of the United States. The Court therefore ORDERS as follows:
Some judges also task special masters with overseeing and administering common benefit funds. For discussion of such appointments and sample appointment orders, see the common benefit fee module.
Depending on the circumstances and needs of the court, transferee judges may grant special masters authority to tackle a broad array of MDL tasks. That was the case in the Opiate MDL, where Judge Dan A. Polster appointed three special masters to assist in numerous and far-reaching work helping to manage that sprawling litigation.
Appointment Order, In re Nat’l Prescription Opiate Litig., MDL No. 2804 (N.D. Ohio Jan. 11, 2018).
The Court appoints as Special Masters the following three individuals:
[appointing David R. Cohen, Francis McGovern, and Cathy Yanni (all experts in dispute resolution) and providing their contact information]
[T]he Court states that the Special Masters shall have the authority to: (1) meet separately and together with various groups to facilitate communications between and amongst (a) the parties, (b) any relevant outside entities, and (c) the Court; (2) assist the Court with mediating resolution of any part of the parties’ disputes; (3) provide legal analysis of the parties’ submissions; ( 4) ensure coordination with any related litigation or governmental action; (5) assist with preparation for attorney conferences (including formulating agendas), court scheduling, and case management; (6) interpret any agreements reached by the parties; and (7) direct, supervise, monitor, and report upon implementation and compliance with the Court’s Orders. The Special Masters shall organize their activity to ensure non-duplication of effort and appropriate attention to the various groups of interested parties and counsel. The Court may
direct the Special Masters to undertake additional duties as the case progresses.
Rule 53(f) provides default rules for judicial review of special master decisions. That rule states that, when acting on a special master’s order, recommendation, or report, an MDL judge must give litigants an opportunity to object and be heard, with objections to be filed within 21 days. Fed. R. Civ. P. 53(f).
Typically, the review of a special master’s factual and legal determinations is de novo. Id. However, the parties can stipulate, with the court’s approval, that all factual findings be reviewed for clear error, or that the special master’s decisions be final. Id. By contrast, a special master’s procedural decisions are set aside only for an abuse of discretion, absent an order establishing another standard of review. Id.
The Settlement Special Master’s decisions over these disputes [regarding claimants’ eligibility for recovery] are final and non-reviewable or appealable.
The Special Master shall endeavor first to mediate a resolution to disputes that may arise. Should mediation fail to result in an agreed upon resolution, the Special Master shall make preliminary rulings that, at the election of any party, may be referred to this Court, in the first instance, and to the State Court Judge overseeing coordinated YAZ®/Yasmin®/Ocella® state court proceedings, secondarily. If judicial review of the Special Master’s suggested preliminary rulings is required, the parties shall bring their disputes to the Court and the
State Court Judges….
Pursuant to Rule 53(f)(2), Sanofi and Mylan may file an objection to the Special Master’s report within ten (10) days from the date it is filed; failure to meet this deadline results in permanent waiver of any objection to the Special Master’s report. Any objections will be considered by District Judge Daniel D. Crabtree. Absent timely objection, the report and recommendation of the Special Master shall be deemed approved, accepted, and ordered by the Court, unless the Court explicitly provides otherwise.
Rule 53(b)(2)(B) requires that any order appointing a special master must establish parameters for the special master’s communications with the court and the parties. Fed. R. Civ. P. 53(b)(2)(B); see also Bolch Guidelines, supra at 100 (discussing Rule 53(b)(2)(B)).
Some courts choose to allow private communications between the special master and the transferee judge while barring such communications between the special master and a party absent the other party’s consent. Some transferee courts permit unfettered communication between the court and the special master—while others put some guardrails around what can and cannot be discussed.
When it comes to communications with the parties, courts are particularly likely to permit the special master to communicate ex parte with a party or counsel if the communication relates to purely administrative matters or a possible settlement.
Ex Parte Communication. The parties shall not engage in ex parte oral or written communications with the Special Master concerning any matter that in any way relates to these proceedings, except with the consent of the affected parties (e.g., to mediate an issue in front of the Special Master). In furtherance of her duties, the Special Master may communicate ex parte with the Court on any matter and at any time.
Order of Appointment, In re 3M Combat Arms Earplug Prods. Liab. Litig., MDL No. 2885 (May 29, 2020).
Ex Parte Communications. Pursuant to Rule 53(b)(2)(B), the special master may communicate ex parte with the Court at any time. She also may communicate ex parte with a party or counsel on purely administrative matters and in attempting to mediate these cases.
Appointment Order, In re Nat’l Prescription Opiate Litig., MDL No. 2804 (N.D. Ohio Jan. 11, 2018).
The Special Masters may communicate ex parte with the Court at their discretion, without providing notice to the parties, regarding logistics, the nature of their activities, management of the litigation, and other appropriate procedural matters, and also to assist the Court with legal analysis of the parties’ submissions. The Special Masters may communicate ex parte with any party or its attorney, as each Special Master deems appropriate, for the purposes of ensuring the efficient administration and management and oversight of this case, and for the purpose of mediating or negotiating a resolution of part or all of any dispute related to this case. The Special Masters shall not communicate to the Court any substantive matter the Special Master learned during an ex parte communication between the Special Master and any party.
Among the most common applications of adjuncts, and specifically special masters, is helping the court navigate settlement. Courts frequently appoint special masters (sometimes called “settlement masters”) to facilitate settlement discussion among the parties. Courts also may appoint other types of settlement-related adjuncts to handle specific components of the complex MDL settlement process, including, for example, claims administrators. This module focuses on the factors driving courts to appoint special masters (or not) to help guide the settlement process, along with providing some sample appointment orders. The structuring and facilitating settlement module considers the various policies, procedures, and other techniques that different types of settlement-related adjuncts use to execute their roles once appointed.
Settlement-focused special masters can bring many benefits. As discussed in this module, they may conduct ex parte negotiations with the parties, which can promote settlement, while also preserving the MDL judge’s neutrality as the litigation continues. See Jaime Dodge, Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation, 64 Emory L.J. 329, 333 (2014). Some judges, including Judge Dan Polster of the Northern District of Ohio, have highlighted the value that settlement masters can bring to managing the complexity of MDL settlements and encouraging the parties to negotiate in good faith. See Dan Polster, Francis McGovern: Special Master Par Excellence, 84 zspan class=”sc”>L. & Contemp. Probs. 11 (2021).
There are, however, certain drawbacks to appointing settlement-focused special masters. Critics complain that the financial costs of settlement-focused special masters can be “problematic.” Burch & Williams, supra at 2201. Similarly, delegating settlement-related tasks to special masters—work that is known to be “difficult” and “tedious”—is viewed by some as an “abdication” of the judge’s task of overseeing the litigation to its conclusion. Id. at 2201–02. Others disagree, pointing out that special masters are not overly costly, especially in light of their ability usher the parties toward an efficient and effective settlement. See, e.g., Lynn A. Baker & Andrew D. Bradt, MDL Myths, 101 Tex. L. Rev. 1521, 1553–54 (2023) (commenting that Burch and Williams’ accusations “reflect a large error by many critics,” who wrongly assert that MDL plaintiffs’ lawyers have too much influence over the special master selection process); Hon. Stephen R. Bough & Hon. Anne E. Case-Halferty, A Judicial Perspective on Approaches to MDL Settlement, 89 UMKC L. Rev. 971, 976–77 (2021) (touting positive impacts of settlement masters).
Special masters may be appointed at any stage throughout the settlement process, from early in the litigation to help the parties begin discussing resolution to the final stages of administering a global settlement agreement’s terms.
Order of Appointment, In re 3M Combat Arms Earplug Prods. Liab. Litig., MDL No. 2885 (May 29, 2020).
With the parties’ consent and pursuant to Federal Rule of Civil Procedure 53, Ellen K. Reisman, partner at Reisman Karron Greene, LLP in Washington, DC, is appointed as a special master to assist the Court in efficiently coordinating settlement discussions in these proceedings. She has filed the affidavit required by Rule53(b)(3)(A), stating that there are no grounds for disqualification under 28 U.S.C.§ 455. See ECF No.1146.The special master must proceed with all reasonable diligence in fulfilling the duties assigned her by the Court.
[listing specific duties].
As Settlement Master, Mr. [Robert] Mueller has the authority to schedule at his discretion any settlement discussions; to decide who shall participate in the discussions, including what party representatives are needed; and to choose where and how the discussions are to occur.
Settlement masters may also be appointed after a settlement in principle has been reached, including to resolve disputes regarding specific claimants’ eligibility for recovery.
Johnson Law Group (“Plaintiffs’ Counsel”) has entered into a separate Confidential Settlement Agreement (the “Settlement Agreement”) with Ethicon, Inc. and related entities defined by agreement as “Ethicon” to resolve the claims related to the implantation of Ethicon Pelvic Mesh Products (as defined in the Settlement Agreement). Under the provisions of the Settlement Agreement, Plaintiffs’ Counsel has agreed to seek the approval of this Court to appoint a Settlement Master to perform certain defined functions related to the administration and implementation of the Settlement Agreement. Plaintiffs’ Counsel believes that Archer Systems/Matthew W. Frazier is well-qualified to perform these and other functions discussed below.
Accordingly, Plaintiffs’ Counsel request, pursuant to the Court’s inherent case management powers, the appointment of Archer Systems/Matthew W. Frazier to assist in the administration and implementation of their settlement with Ethicon, with the authority to:
Ethicon does not oppose Plaintiffs’ Counsel’s request. The Court, pursuant to its inherent authority, and having considered the requests, and cognizant of the important public policy of encouraging settlement among litigating parties, hereby issues the following Order.
The Motion [ECF No. 8250] is GRANTED….
As noted, Rule 53 authorizes the appointment of a special master to handle tasks that “cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed. R. Civ. P. 53(a)(1)(C). MDL judges may choose not to appoint a special master where they feel that they, or an assigned magistrate judge, have the capacity to handle litigation matters and that appointing a special master is not otherwise in the interests of the litigation.
The court may re-evaluate this balance as the MDL progresses and circumstances evolve in their schedules and the litigation.
The Plaintiffs’ Steering Committee says there are many discovery issues that will demand considerable time and attention from a judicial officer or a quasi-judicial officer, and that those same issues will require a lot of time from their own members. So as the PSC sees it, more time than usual will be needed for document production, delaying depositions, and forcing dispositive motion practice and bellwether trials further along the calendar. As the PSC sees it, a special master for discovery matters would expedite resolution of the anticipated discovery disputes, so a special master for discovery should be appointed lest the life of this docket be extended even further. Biomet sees things differently. Biomet says it produced by August the documents it said it would produce by August, and the attorneys have met-and-conferred their way through many thorny issues already and are continuing to do so. Having begun its document production in 2012 (even before the creation of this MDL docket and before the creation of the PSC), Biomet says it’s unreasonable to think depositions must be delayed to the point that selection of bellwether trials can’t begin until 2015. Biomet also believes the state of this case is such that the law doesn’t allow appointment of a special master.
I agree with Biomet’s legal point. To appoint a special master for any pretrial purposes, a court must find that an available district judge or magistrate judge of the district can’t address matters effectively and timely. Fed. R. Civ. P. 53(a)(1)(C). To help me evaluate the PSC’s request under that standard, counsel for both sides outlined present and anticipated obstacles in the discovery process. The PSC anticipates many issues, requiring regular conferences on a weekly or bi-weekly basis. Biomet points to the parties’ past and ongoing meet-and-confer efforts. Biomet notes that while I’ve had to resolve a few issues so far, no motions to compel pend.
Among the reasons busy district judges cheerfully accept assignments from the Judicial Panel on Multidistrict Litigation is the chance to work with some of the nation’s best attorneys. The attorneys in this docket validated that thought. The attorneys have worked diligently through a variety of issues that might have required my involvement; when they have been unable to resolve an issue, they have placed the issue, well defined, into my hands and I have decided those issues with reasonable dispatch. More issues are in the pipeline. It appears likely that I’ll have to decide whether the PSC can take the deposition of Biomet’s CEO. I might need to decide issues about electronically stored Biomet records from before 2009, such as what Biomet must do to retrieve them and how they will be filtered for discoverable matter. I might have to decide whether (and if so, when) Biomet must provide unredacted adverse event reports in its files to attorneys who represent the plaintiff-patients in those complaints. I might have to enter some sort of order addressing what the PSC sees as an alarmingly low perceived relevancy rate of documents Biomet already has produced. Alternatively, some of those rulings might be unnecessary because (apart from the CEO’s deposition) the parties’ meet-and-confer efforts continue. And, of course, I also might have to rule on many other, more intricate issues that haven’t yet emerged. I see no reason why I won’t be able to provide the discovery rulings the parties need and do so with sufficient dispatch that the case can stay on a timetable. I will enter an order authorizing Magistrate Judge Christopher A. Nuechterlein to hear and resolve discovery disputes on those rare occurrences when I am unavailable. In furtherance of that goal, I will enter a separate order providing an expedited procedure for resolving discovery disputes that the parties find they can’t resolve.
Because an available district judge and/or magistrate judge can effectively and timely address pretrial matters in this docket, I deny the PSC’s request for appointment of a special master for discovery purposes.
