There is a dispute brewing among Louisiana plaintiff lawyers over who will get to argue at the MDL Panel hearing on July 29, 2010 that all oil spill cases should be transferred to Louisiana.
Some lawyers want New Orleans lawyer Russ Herman to argue for the Easter District of Louisiana at the hearing. That prompted this lengthy response email from Louisiana lawyer Dan Becnel:
With all due respect, please be advised that I was the original moving party in the MDL and filed the first lawsuit which asked for a MDL. I have since filed complaints in numerous jurisdictions. Complaints I filed deal with numerous issues other than simply economic loss. They deal with Civil RICO, Environmental cases, and tax abatement cases, to name a few. We also filed securities cases, as has Jim, in New York, Lafayette, and other locations. While I have great respect for Calvin and Russ, I must advise that nobody to my knowledge that has filed a motion to speak before the MDL Panel has the credibility that I have before this Panel. An example of that is that on Wednesday, I spent hours with Professor Francis McGovern at the request of the Chair of the Judicial Panel of Multidistrict Litigation, Judge Heyburn to discuss a study he has commissioned dealing with MDL’s, their procedures, its good points and recommendations for improvement. There are very few lawyers from around the country who were asked to participate in this study. As a matter of fact, Professor McGovern will be attending the MDL hearing at the request of Judge Heyburn, as he did at the last major MDL hearing that dealt with the Toyota case.
I have been appearing before the MDL Panel on a regular basis since 1970. Just over the last few years, almost every major MDL that has come to New Orleans, I not only argued the case but was the moving party. An example of a few are the following:
1) Propulsid, MDL No. 1355, assigned to Judge Fallon;
2) Vioxx, MDL No. 1657, assigned to Judge Fallon;
3) Ford Paint, MDL No. 1063, assigned to Judge Vance
4) Shell Motiva, MDL No. 1632, assigned to Judge Lemelle; and
5) Chinese Drywall, MDL No. 2047, assigned to Judge Fallon.
In addition, I have appeared on a regular basis before the Panel for over 35 years, sometimes having three or more cases to argue before the Panel.
It should be noted that Jerry Meunier and I were so upset about the entire MDL process allowing only a two or three minute argument per district, that he and I coordinated efforts to have the Panel grant extended arguments. It was increased to an hour of argument, which we estimate at thirty minutes per side. I had spoke to Professor Francis McGovern about this issue. Jerry Meunier filed an excellent brief on this issue and the request we both made was granted. Since most people on the ListServ did not attend the MDL hearing dealing with Toyota, the last major MDL that was argued before the Panel, each district was given two minutes, with 27 districts being allowed to argue. Jerry had requested time for me to argue and I agreed.
I do not have any objection to having someone else participate; however, the economic loss cases are one component of this MDL. Environmental cases and Civil RICO cases are other components. Tax Abatement is another. In addition, at the Toyota MDL hearing, Judge Heyburn asked if more than one judge should be appointed. I am sure he will request the same at this MDL hearing. Certainly the Securities cases have a separate MDL number. After speaking with people who have great insight into the process, I believe there will be two to three judges appointed. In all probability, Judge Ellison will take the Transocean Limitation case. It is my intention to strongly support New Orleans. If the Panel thinks judges in New Orleans have conflicts, I even want, at the request of Rob Gordon, to ask for a Judge to be imported into New Orleans to hear the case rather than requiring the case and all the parties to go somewhere else. Let there be no mistake, I want the Eastern District of Louisiana first, and alternatively, the Middle District and/or the Western District. There is great speculation as to where this case will go. From my experience in over 35 years practicing before the Panel, the one thing we do know is “Nobody can predict what the Panel will do.” A good example is the recent argument I made on Chinese Drywall, Arnold Levin, who has vast experience in the MDL , argued for Miami and Florida. Almost 65% of all the cases in the MDL came from Florida but yet, the Panel accepted my argument requesting Judge Fallon in the Eastern District.
With the above in mind, practicing before the MDL Court is not a popularity contest but one of credibility before the Panel. Jerry Meunier and I discussed this very issue over the last few weeks. Although he never made an appearance before the Panel in his career, I thought his brief was excellent and his insight to argue was even better.
I do not intend to defer my time to the Attorney General, much less the Justice Department. In all probability, MMS maybe a party defendant. While Steve and Jim have done an excellent job as Liaison Counsel, neither have experience before the MDL Panel. Russ, to my knowledge, has only appeared once but has given great insight into many cases before the Panel where he and I have worked in concert but I am usually the person who makes the argument. Russ has repeatedly complimented my argument which brought Chinese Drywall to New Orleans.
I hope you understand my position.
One of my lawyers, Will Percy, will be assisting Professor Bea at a symposium today in reference to the Oil Spill and will accompany him to Grand Isle tomorrow to further assist him with filming a new segment for 60 Minutes on the Deepwater Horizon disaster. As you know, Solly Granatstein is the producer who I assisted in the first 60 Minutes piece and I have been working with 60 Minutes since then on the second piece being produced. Please keep this confidential.
DANIEL E. BECNEL, JR.
There will presumably be plaintiff’s lawyers from other parts of the country arguing to have the case transferred to their backyards. Meanwhile, BP attorneys will argue for a transfer to the federal court in Houston.
So where will the oil spill cases wind up? Who knows. As Becnel stated in his email: Nobody can predict what the Panel will do.