This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 17
IN THE
SUPREME COURT OF THE STATE OF UTAH
DAVIS COUNTY,
Appellant,
v.
PURDUE PHARMA, L.P., et al.,1
Appellees.
No. 20190487
Heard December 11, 2019
Filed April 23, 2020
On Interlocutory Appeal
Second District, Farmington
The Honorable David M. Connors
No. 180700870
Attorneys:
Douglas B. Thayer, Wm. Kelly Nash, Andy V. Wright,
Jordan K. Cameron, Mark R. Nelson, Jessica Griffin Anderson,
_____________________________________________________________
1 Johnson & Johnson; Janssen Pharmaceuticals, Inc.;
Ortho-McNeil-Janssen Pharmaceuticals, Inc. n/k/a Janssen
Pharmaceuticals, Inc.; Janssen Pharmaceutica, Inc. n/k/a Janssen
Pharmaceuticals, Inc.; Purdue Pharma Inc.; The Purdue Frederick
Company Inc.; McKesson Corp.; McKesson Medical-Surgical, Inc.;
Amerisourcebergen Corp.; Amerisourcebergen Drug Corp.;
Mallinckrodt LLC; Actavis LLC; Actavis Pharma Inc.; Watson
Laboratories Inc.; Allergan Finance LLC; Allergan Sales LLC;
Allergan USA Inc.; Depomed, Inc. n/k/a Assertio Therapeutics Inc.;
Cardinal Health Inc.; Cardinal Health 105 Inc.; Cardinal Health 107
LLC; Cardinal Health 108 LLC; Cardinal Health 110 LLC; Cardinal
Health 112 LLC; Cardinal Health 200 LLC; Cardinal Health 414 LLC;
Abbvie Inc.; Knoll Pharmaceutical Company; Perry Fine; Scott
Fisherman; Lipocine Inc.; Lipocine Operating Inc.; Spriaso LLC.
DAVIS COUNTY V. PURDUE PHARMA, L.P.
Opinion of the Court
David B. Nielson, Lehi; Thomas J. Burns, R. Blake Hamilton,
Salt Lake City; Martin J. Phipps, Barry Deacon, Jason M. Milne,
Daniel R. Griffin, Meagan Talafuse, San Antonio, Texas;
Troy S. Rawlings, Neal C. Geddes, Michael D. Kendall, Farmington,
for appellant
Andrew G. Deiss, John Robinson Jr., Corey D. Riley,
Elisabeth M. McOmber, Erik A. Olson, Trevor C. Lang,
Kamie F. Brown, Kristine M. Larsen, Geoffrey C. Haslam,
Tyler V. Snow, Brent O. Hatch, Lara A. Swensen, Jess M. Krannich,
Trevor J. Lee, Brent R. Baker, Jonathan D. Bletzacker,
D. Matthew Moscon, Michael Menssen, Joseph R. Brubaker,
Rod N. Andreason, Mark A. Nickel, Salt Lake City; Mark Bettilyon,
Sandy; Charles C. Lifland, Amy Laurendeau,
Los Angeles, California, for appellees
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE PEARCE, JUSTICE PETERSEN, and
JUDGE HARRIS joined.
Having recused himself, JUSTICE HIMONAS does not participate
herein; COURT OF APPEALS JUDGE RYAN M. HARRIS sat.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This is one of thousands of cases filed by state and local
governments against opioid manufacturers in courts across the
country. The plaintiffs in these cases assert, among other things, that
manufacturers and distributors of opioid drugs misled doctors and
consumers about the safety of these drugs, which led to medically
unnecessary prescriptions and ultimately to the abuse of opioids—
the opioid epidemic. They seek to hold defendants liable for the
public costs arising from the use and misuse of opioid drugs.
¶2 Fifteen of these opioid cases have been filed in the Utah
courts—with one or more cases pending in each of our eight judicial
districts. Various counties have filed suit in their home judicial
districts. The first such case was filed by Summit County in the third
district. Salt Lake and Tooele Counties also filed in that district.
Davis County then filed suit in the second district, and various other
counties filed in the courts in their respective home districts.
¶3 In November 2018, various manufacturer defendants filed a
motion to consolidate all of the pending cases in the state in the third
district. Citing Utah Rule of Civil Procedure 42, defendants asserted
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Opinion of the Court
that the interests of judicial economy and justice would be served by
consolidating all of the pending cases, at least for pretrial purposes,
in the court in which the first related action was filed. The third
district court granted the motion in part, consolidating the three
third district cases for pretrial purposes but declining to order
transfers from outside the third district. In so ruling the court
concluded that the “benefits of pretrial coordination far outweigh the
potential prejudice to any litigant,” but declined to endorse what it
viewed as an “untested interpretation of Rule 42 to consolidate
matters pending in other judicial districts.” Yet the court also invited
judges in other districts to consider the possibility of transferring
their opioid cases to the third district “as a means of facilitating
pretrial coordination and achieving the benefits it offers.”
¶4 One of the manufacturer defendants (Janssen
Pharmaceuticals, Inc.) took the third district court up on that
suggestion. It filed a motion in the second district, asking the court to
transfer the Davis County action to the third district for discovery
and pretrial proceedings. Davis County opposed the motion,
asserting (among other things) that the district court lacked the
power to transfer the case under civil rule 42 and that transfer was
foreclosed under Utah Code section 78B-3-309. Because the statute
speaks only of transfer for trial purposes, Davis County claimed that
the statute preempted any inherent power vested in the district
court. And even assuming that the statute could be viewed to
endorse transfer only for discovery and pretrial purposes, Davis
County contended that the conditions of the statute were not
satisfied and that transfer was thus improper. Lastly, Davis County
asserted that the interests of justice and judicial economy disfavored
transfer for pretrial proceedings even assuming that the district court
had some kind of authority (inherent or otherwise) to grant such a
motion.
¶5 The second district court granted the transfer motion. It
found that it lacked the power to consolidate these proceedings
under civil rule 42 and held that Utah Code section 78B-3-309 did not
apply, but concluded that it had the authority to transfer for pretrial
proceedings under its “inherent power to manage its cases, and
docket.” In explaining the basis for exercising that power, the court
concluded that “there are significant benefits that will result from the
partial transfer of venue,” including the following:
(1) Conservation of judicial resources by avoiding the
need for eleven judges to manage twelve substantively
similar lawsuits, in parallel, at the same time; (2)
Avoidance of inconsistent legal rulings regarding the
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DAVIS COUNTY V. PURDUE PHARMA, L.P.
Opinion of the Court
pleadings, discovery disputes—of which there are
likely to be many—and potentially dispositive motions;
and (3) Avoidance of unnecessarily duplicative
discovery, and judicial coordination and management
of the extraordinary discovery, well beyond the
standard limits set by Rule 26, that is almost certainly
required in a litigation of this size.
In light of these considerations the court found that “a limited
transfer of venue for pretrial proceedings [would] promote the ends
of justice and the efficient administration of pending cases and
dockets.”
¶6 Davis County filed a petition for leave to challenge the
transfer on interlocutory appeal, which we granted. In challenging
the transfer, Davis County first questions the authority of the district
court to enter an order transferring an action for pretrial purposes
only. It then contends that the district court exceeded the bounds of
its discretion in ordering transfer here even assuming that the court
has the power to grant such motions.
¶7 We affirm. First, we consider the question of the district
court’s authority to grant a motion to transfer for pretrial
proceedings. This presents a series of questions of law, which we
review de novo. See WDIS, LLC v. Hi-Country Estates Homeowners
Ass’n, 2019 UT 45, ¶ 15,
449 P.3d 171 (questions of law are reviewed
for correctness). We hold that the district court has inherent
authority to grant such a motion, which is undisturbed by Utah
Code section 78B-3-309. Second, we consider Davis County’s
challenge to the district court’s decision to exercise its authority in
granting the motion to transfer. This is a question committed to the
district court’s discretion, which we review for an abuse of
discretion. Chamblee v. Stocks,
344 P.2d 980, 981 (Utah 1959). We hold
that the district court acted well within the bounds of its discretion in
granting the motion to transfer the Davis County action for
discovery and pretrial proceedings.
I
¶8 Appellees cite three possible sources of authority for the
transfer of this action from the second district to the third: civil rule
42, Utah Code section 78B-3-309, and the inherent power of the
court. Davis County contests all three grounds. It asserts that civil
rule 42 is addressed only to the authority of a district judge to
consolidate cases within a single district, contends that section 78B-3-
309 speaks only to transfer to “change the place of trial,” and argues
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that the statute occupies the field in a manner preempting any
inherent judicial power.
¶9 Davis County makes some strong points. The language and
structure of rule 42 seem aimed at consolidation of cases within a
single district. Rule 42 authorizes a “court” to consolidate any
“actions involving a common question of law or fact pending before
the court” and to “make such orders concerning proceedings therein
as may tend to avoid unnecessary costs or delay.” UTAH R. CIV. P. 42.
But the rule seems to be speaking of consolidation within a district—
not multi-district transfer from one district to another. This seems
evident in the requirement that a consolidated case “be heard by the
judge assigned to the first case” filed, or by “another judge” if
assigned by the “presiding judge . . . for good cause.” Id. (emphasis
added). The role of “presiding judge” exists only in each individual
district. And that indicates that rule 42 speaks to consolidation
within a single judicial district, not to transfer from one district to
another.
¶10 The venue transfer statute also has limited application. It
speaks of transfer to “change the place of trial” and identifies factors
that seem addressed to considerations of relevance to trial—to
whether “there is reason to believe that an impartial trial cannot be
had” in the venue where the case was filed and whether “the
convenience of witnesses . . . would be promoted” by transfer. UTAH
CODE § 78B-3-309.
¶11 For these reasons we decline to interpret rule 42 or Utah
Code section 78B-3-309 to authorize the multi-district transfer of this
action from the second district to the third district. Yet that still
leaves the question whether the second district court had the
inherent power to order this transfer. Because the venue transfer
statute speaks only to transfer for trial purposes, Davis County asks
us to interpret it to foreclose any inherent judicial power to transfer
venue for pretrial purposes. Citing Hale v. Barker, 259 P. 928, 931
(Utah 1927), Davis County asserts that the “[d]istrict courts of this
state have only such authority to transfer for trial causes of action
from one county to another as is granted by the [Utah] Code.” See
also State v. Cauble,
563 P.2d 775, 777 (Utah 1977) (holding that a
change of venue is prohibited “except when authorized by law”).
And Davis County invites us to view the gap in this statute as a
“purposeful omission”—a restriction of venue transfer to transfer for
trial, with an implied prohibition of transfer for pretrial purposes.
¶12 Our cases admittedly have spoken of “purposeful
omissions.” We have gone so far as to say that “all omissions”
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DAVIS COUNTY V. PURDUE PHARMA, L.P.
Opinion of the Court
should be viewed as “purposeful,” under the canon that “the
expression of one [term] should be interpreted as the exclusion of
another.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14,
267 P.3d 863 (alteration in original) (citation omitted). But this canon,
like most others, is more of a presumption than a hard-and-fast rule.
No one thinks that “the expression of one term” is always “the
exclusion of another.” And the canon, as stated, begs the embedded
question of what counts as a purposeful omission.
¶13 Not every gap in the law is a purposeful omission. Some
gaps are just gaps—to be filled in later, as by the exercise of
common-law power or the inherent power of a court. The gap
question presented here is essentially a question of field preemption.
It asks whether a statute that regulates venue transfer for trial
purposes should be viewed as so comprehensive that it preempts the
exercise of inherent power of a court in the field—foreclosing any
legal basis for venue transfer for pretrial purposes.
¶14 We do not view the venue transfer statute as fulfilling such
a role. We interpret it as leaving a gap that may be filled in by the
exercise of the inherent power of a court. And we thus conclude that
the statutory regulation of venue transfer for trial purposes is not a
“purposeful omission” under the above-cited canon of construction.
We reach this conclusion for several reasons, which combine to
confirm that the legislature’s regulation of venue transfer for trial
does not displace the inherent power of the courts to transfer venue
for other purposes.
¶15 A threshold point concerns the evolution in the nature of
civil litigation since the era in which the venue transfer statute was
first enacted. The statute has been on the books since the earliest
days of statehood. See 1901 Utah Laws Ch. 23, § 2934. Since that time,
the focus of the statute has been on venue transfer for trial. And that
makes sense in historical perspective. From the time of statehood
through much of the first half of the twentieth century, civil
litigation was essentially trial practice. Discovery and pretrial
practice were not entirely unknown. But the key stage of the civil
case was trial. 2
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2 See Ulrich v. McConaughey, 88 N.W. 150, 154 (Neb. 1901),
modified,
96 N.W. 645 (Neb. 1903) (explaining that discovery under
the common law “was very strict in confining each party to his own
means of proof, and, as it has been expressed, regarded a trial as a
cock fight, wherein he won whose advocate was the gamest bird
(continued . . .)
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Opinion of the Court
¶16 That began to change with the adoption of formal rules of
civil procedure. Since the adoption of such rules, the focus of civil
litigation increasingly has turned to procedural precursors to trial—
the discovery process and pretrial motion practice. Today most cases
settle or are resolved on motion before trial.3 And in this era, the
parties may be as concerned about pretrial venue as they are about
venue for trial.
¶17 This background makes us reluctant to view the gap in the
venue transfer statute as a “purposeful omission” sustaining the
inference that the legislature meant to foreclose venue transfer for
pretrial purposes. Because trial was the focus of civil litigation from
the time the statute was first enacted and for many decades
thereafter, the better inference is that the legislature was thinking
only about the need for venue transfer for trial and saw no need to
regulate transfer for pretrial purposes. This suggests that the
legislative gap at issue here is just a gap, not a field-occupying
omission barring the exercise of inherent judicial power.
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with the longest spurs”); Stephen N. Subrin, Fishing Expeditions
Allowed: The Historical Background of the 1938 Federal Discovery Rules,
39 B.C. L. REV. 691, 694 (1998) (describing historical discovery
practices leading up to the adoption of the federal rules of civil
procedure in 1938 and noting that “[h]istorically, discovery had been
extremely limited in . . . the United States”); Edson R. Sunderland,
Foreword to GEORGE RAGLAND, JR., DISCOVERY BEFORE TRIAL, at iii
(1932) (“[N]o procedural process offers greater opportunities for
increasing the efficiency of the administration of justice than that of
discovery before trial” because “[f]alse and fictitious causes and
defenses thrive under a system of concealment and secrecy in the
preliminary stages of litigation followed by surprise and confusion
at the trial.” But while “[a]ll this is well recognized by the profession,
. . . there is a wide-spread fear of liberalizing discovery. Hostility to
‘fishing expeditions’ before trial is a traditional and powerful
taboo.”).
3 Theodore Eisenberg & Charlotte Lanvers, What is the Settlement
Rate and Why Should We Care? 6 J. EMPIRICAL LEGAL STUD. 111, 111–13
(2009); Martin H. Redish, Summary Judgment and the Vanishing Trial:
Implications of the Litigation Matrix, 57 STAN. L. REV. 1329, 1329 (2005)
(“There can be little question that, at least in the federal courts, trials
are vanishing. The statistics make this conclusion inescapable.”).
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DAVIS COUNTY V. PURDUE PHARMA, L.P.
Opinion of the Court
¶18 This conclusion is reinforced by a second historical
development of relevance to our decision. When the venue statute
was first enacted, “the legislature possessed authority to adopt rules
of procedure and evidence, but delegated that authority to the
supreme court.” Kent R. Hart, Note, Court Rulemaking in Utah
Following the 1985 Revision of the Utah Constitution, 1992 UTAH L. REV.
153, 153 (1992). But that changed with the amendments to article VIII
of the Utah Constitution in 1985. The 1985 amendments vest
exclusive primary authority in this court to “adopt rules of
procedure and evidence to be used in the courts of the state.” UTAH
CONST. art. VIII, § 4. The legislature’s power in this field is limited
and secondary. The legislature has the power only to “amend” the
rules that we adopt, and to do so on a “two-thirds” vote of “all
members of both houses of the Legislature.” Id.; see also Brown v. Cox,
2017 UT 3, ¶ 31,
387 P.3d 1040 (holding that “the Legislature must
clearly express its intent to amend our rules of procedure and
evidence, and that a joint resolution specifically aimed at a rule of
evidence or procedure is an effective mechanism for the Legislature
to express that intent”).
¶19 This is also significant. Venue transfer is a quintessential
matter of procedure. See State v. Rettig,
2017 UT 83, ¶ 58,
416 P.3d 520
(explaining that something is “quintessentially procedural” when “it
prescribes the manner and means of raising a particular issue in
court proceedings”); Petty v. Clark,
192 P.2d 589, 593–94 (Utah 1948)
(describing procedural law as “law which pertains to and prescribes
the practice and procedure or the legal machinery by which the
substantive law is determined or made effective”). So this court
could adopt a rule regulating venue transfer, and the legislature
lacks the power, under the constitution as it stands today, to
foreclose the adoption of such a rule. The legislature’s authority
would be limited to amending any rule we might adopt.
¶20 In so stating we are not questioning the constitutionality of
the venue transfer statute as it stands. That statute was enacted in an
earlier era, at a time when the legislature had shared authority over
procedural rulemaking. And because no party has asked us to find
that the venue statute is unconstitutional, certainly no party has
carried the burden of establishing unconstitutionality. We
accordingly see no reason to question the viability of the statute as
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Opinion of the Court
far as it goes—in regulating the terms and conditions of venue
transfer for trial.4
¶21 But we do see this history as reinforcing our reluctance to
treat the venue transfer statute as fully occupying the field in a
manner foreclosing any judicial power over venue transfer. The
constitutional landscape, as it stands today, is incompatible with
Davis County’s position. If venue transfer is a matter of procedure,
then this court has the exclusive primary authority to regulate this
field through the adoption of rules of procedure. The legislature’s
authority is limited, and secondary. And that conclusion forecloses
Davis County’s view that the venue transfer statute preempts
inherent judicial power through a “purposeful omission” of any
standards governing transfer for pretrial purposes.
¶22 We have not yet exercised our power to adopt a rule
regulating transfer from one district court to another, or transfer of
venue for pretrial purposes (or for any other purposes for that
matter). So that still leaves the question whether the district court
had the power to order a multi-district transfer for pretrial purposes
in the absence of such a rule. We hold that it did. And we root that
power in the inherent authority of the court.
¶23 We base this determination on a third point that drives our
holding—the observation that the courts have long recognized and
exercised “inherent” judicial power to manage court proceedings in
a manner that “promote[s] efficiency in the judicial process.” Garver
v. Rosenberg, 2014 UT 42, ¶ 15 n.24,
347 P.3d 380. Such power may be
manifested in positive rules of procedure. But formal rules of
procedure are a modern invention. Traditionally, the authority to
transfer venue and to manage other aspects of court procedure was
rooted in the “common law” as an element of the court’s “inherent
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4 That said, there may be good reasons for us to consider the
possibility of adopting a venue transfer rule in our rules of civil
procedure—one that either enshrines the existing venue transfer
standards in a rule or, alternatively, amends or supplements the
existing standards. Our advisory committee on the rules of civil
procedure should consider this question and make
recommendations to the court. Such a rule could obviate any
potential constitutional questions regarding the venue transfer
statute. It could also have the virtue of centralizing all venue transfer
standards in a single rule.
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DAVIS COUNTY V. PURDUE PHARMA, L.P.
Opinion of the Court
power.” Anderson v. Johnson, 268 P.2d 427, 430 (Utah 1954). “From
the birth of common law courts until the late-nineteenth century,
courts regularly acted on their own on various procedural matters.”
Benjamin H. Barton, An Article I Theory of the Inherent Powers of the
Federal Courts, 61 CATH. U. L. REV. 1, 32–33 (2011). And that power
has long been viewed to encompass the authority to transfer an
action from one district to another for the sake of convenience and in
the interests of justice.
¶24 This is implicit in our opinion in Sanipoli v. Pleasant Valley
Coal Co., 86 P. 865 (Utah 1906). In Sanipoli this court noted the
existence of a “practice” tracing back to “territorial days” of our
courts “transferring cases and proceedings . . . for the mere
convenience of the bench and bar.”
Id. at 868–69. Sanipoli held that an
original provision of article VIII of the Utah Constitution precluded
this practice—in the section 2 requirement that “[a]ll civil and
criminal business arising in any county must be tried in such county,
unless a change of venue be taken, in such cases as provided by
law.” See
id. at 867–69 (quoting UTAH CONST. art. VIII, § 5 (repealed
1985)). But that provision of article VIII, section 2 was repealed and
replaced in 1985, in the above-noted amendments establishing this
court’s power to adopt rules of procedure. And with the old article
VIII, section 5 prohibition eliminated, the remaining significance of
Sanipoli is its recognition of the longstanding nature of the practice of
venue transfer for the sake of convenience and in the interests of
justice.
¶25 This is the answer to Davis County’s assertion that a district
court’s authority to transfer venue is limited to that “granted by the
[Utah] Code.” Hale, 259 P. at 931. That premise does not hold under
the Utah Constitution as it stands today. This court has
unquestioned authority to adopt a rule of procedure governing
venue transfer, and our district courts likewise have inherent power
to transfer a case from one district to another.
¶26 We uphold the second district court’s authority to transfer
this action on this basis. We find no authority for multi-district
transfer under civil rule 42 or Utah Code section 78B-3-309 but
conclude that our district courts retain inherent power to make such
a transfer in the interests of justice and for the sake of judicial
economy.
II
¶27 Davis County also questions the basis for the second district
court’s decision to transfer this action to the third district. It cites
cases recognizing the prerogative of a plaintiff to file and pursue its
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Opinion of the Court
claims in its home district.5 And it seeks to diminish the efficiencies
purportedly flowing from the transfer of related opioid cases and
their consolidation in a single district. With these concerns in mind,
Davis County insists that the second district court abused its
discretion in transferring this action to the third district.
¶28 Davis County’s choice of its home forum is a matter worthy
of substantial deference. But that deference is diminished by the fact
that the transfer here is for pretrial purposes only—for discovery and
any pretrial motions. Because all parties are represented by
out-of-state counsel and in-state counsel in Salt Lake City, Lehi, or
Davis County, it seems unlikely that the transfer from the second
district court (in Davis County) to the third district court (in Summit
County) will make much of a difference to the convenience of the
parties. Davis County officials may prefer the Davis County forum
for any hearings on motions they may wish to attend. But we see no
meaningful difference for in-state counsel, as the travel from Salt
Lake City, Lehi, or Davis County to either court can be completed in
a fairly short time. Out-of-state counsel, on the other hand, will likely
arrive in Utah by air travel to the Salt Lake City International
Airport, and travel to either court can be completed in a relatively
short time. As for discovery, depositions typically take place in
counsel’s office or conference room. So again, we see no substantial
impact on Davis County resulting from the transfer.
¶29 Davis County’s questions about the economies resulting
from venue transfer are fair points for debate. Multi-district litigation
is not without its pitfalls.6 And Davis County may be right to predict
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5 See Summa Corp. v. Lancer Industries, Inc., 559 P.2d 544, 546 (Utah
1977) (“[T]he general policy of the law is that when a plaintiff has
commenced a lawsuit and acquired jurisdiction over the defendant,
he should be allowed to pursue his remedy.”); Hale v. Barker,
259 P.
928, 931 (Utah 1927) (“The district court, by ruling that it would
grant the motion, in effect declined to proceed to hear and determine
the cause and therefore refused to perform an act enjoined upon it as
part of its official duty. That is to say, the plaintiffs, as we have held,
having the right to institute the action in Weber county, it must, in
our judgment, necessarily follow that it was the duty of the court, as
a public officer, to hear and determine the controversy between the
parties and render judgment.”).
6 Danielle Oakley, Note, Is Multidistrict Litigation a Just and
Efficient Consolidation Technique? Using Diet Drug Litigation as a Model
(continued . . .)
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Opinion of the Court
that it could get to trial or final disposition more quickly if this case
remained in the second district. These concerns likely could have
sustained a reasonable decision denying the motion to transfer in
this case. But the motion was granted. And we defer to the district
court under the abuse of discretion standard of review.
¶30 We do so in light of the broad range of considerations of
judicial economy cited by the district court in granting this motion7
and the fact that courts throughout the country have granted multi-district transfer motions in parallel opioid proceedings.8 In light of
these circumstances we are in no position to conclude that the
second district court exceeded the bounds of its discretion in
transferring this case to the third district. And we affirm on that
basis.
III
¶31 In affirming the transfer order in this case we do not
disparage the prerogative of a plaintiff like Davis County to select its
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to Answer This Question, 6 NEV. L.J. 494, 494 (2005-2006)
(“Multidistrict litigation is a polarizing practice, with staunch
supporters and fierce opponents.”); id. at 512 (“Multidistrict
litigation does not increase convenience to plaintiffs or their
witnesses. It actually seems to do the opposite. . . . Plaintiffs, of
course, file in the forum they find most convenient. By removing the
action to a jurisdiction hundreds or thousands of miles away,
plaintiffs are obviously inconvenienced.”); id. at 514 (“Multidistrict
litigation is undoubtedly more efficient than the alternative both for
defendants and for society, collectively. Again, however, plaintiffs
do not reap the benefit that defendants do because in multidistrict
litigation each plaintiff becomes a much less significant piece of a
much larger picture, thereby prolonging each plaintiff’s role in the
litigation.”).
7 Those considerations included the “[c]onservation of judicial
resources by avoiding the need for eleven judges to manage twelve
substantively similar lawsuits,” the “[a]voidance of inconsistent legal
rulings” on discovery disputes and “dispositive motions,” the
“[a]voidance of unnecessarily duplicative discovery, and judicial
coordination and management of the extraordinary discovery.”
8 See Nicolas P. Terry, The Opioid Litigation Unicorn, 70 S.C. L. REV.
637, 638–39 (2019).
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home district as the forum of its choice. Nor should this opinion be
viewed as opening the floodgates to cross-district transfers in Utah
generally. A plaintiff’s choice of its home forum should not be
overridden lightly. Multi-district litigation, moreover, is not without
its drawbacks, and we are not suggesting that a motion to transfer a
case from one district to another should be granted lightly. We
affirm the transfer order in this case, however, because we see no
substantial inconvenience to Davis County resulting from a transfer
to the third district for pretrial purposes, and because the district
court weighed the relevant costs and benefits of transfer in a manner
meriting our deference on appeal.
¶32 In so doing we also raise the possible need for a rule of civil
procedure governing multi-district litigation or transfer between
districts. Such a rule would likely be preferable to the ad hoc exercise
of inherent judicial power. With these concerns in mind, we hereby
direct our civil rules advisory committee to consider the possibility
of a rule to guide judicial discretion in this important area going
forward.
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