United States District Court, N.D. California
IN RE ROUNDUP PRODUCTS LIABILITY LITGATION This document relates to ALL ACTIONS
PRETRIAL ORDER NO. 158: DAUBERT CHOICE OF LAW DKT.
HONORABLE VINCE CHHABRIA UNITED STATES DISTRICT COURT
previously explained, to prepare the cases in the MDL for
transfer back to their home districts, the Court will decide
all case-specific summary judgment motions, including any
intertwined Daubert motions. For purposes of these
motions, each member case retains the choice-of-law rules of
the state in which it was filed, meaning the applicable state
law (for example, the law of causation) will remain the same
despite a case's transfer to the MDL. See Larsen v.
Citibank FSB, 871 F.3d 1295, 1303 (11th Cir. 2017);
Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993).
But for questions of federal law, such as the admissibility
of expert testimony under Daubert, Ninth Circuit law
will govern regardless of where a case originated. See In
re. Gen. Am. Life Ins. Co. Sales Practices Litig., 391
F.3d 907, 911 (8th Cir. 2004); In re Anthem, Inc. Data
Breach Litig., No. 15-MD-02617-LHK, 2016 WL 324386, at
*2 (N.D. Cal. Jan. 27, 2016).
case involving a typical transfer under 28 U.S.C. §
1404(a), a transferee court in this circuit is bound by Ninth
Circuit precedent on issues of federal law. Newton v.
Thomason, 22 F.3d 1455, 1460 (9th Cir. 1994). The Ninth
Circuit has not definitively addressed this issue in the
context of an MDL, but it noted that it was “persuaded
by the approach taken by the D.C. Circuit” when
“resolving an identical question under 28 U.S.C. §
1407, ” the MDL transfer statute. Id. (citing
In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C.
Cir. 1987), aff'd on other grounds sub nom. Chan v.
Korean Air Lines, Ltd., 490 U.S. 122 (1989)). As a
baseline principle, the law of a transferor circuit
“does not have stare decisis effect” on a
transferee court in a different circuit. In re Korean Air
Lines Disaster, 829 F.2d at 1176.
doesn't argue that this general rule should never apply
in the MDL context. Rather, it contends that there is an
exception to this rule any time federal law is
“geographically non-uniform.” See Hooper v.
Lockheed Martin Corp., 688 F.3d 1037, 1046 (9th Cir.
2012). But the cases Monsanto cites use “geographically
non-uniform” to describe federal laws that are
“necessarily non-uniform” because they have
“embedded state law issues.” See Id. at
1044-46 (addressing the limitations period for the False
Claims Act, which “borrows the most closely analogous
state statute of limitations”); see also Eckstein
v. Balcor Film Inv'rs, 8 F.3d 1121, 1127 (7th Cir.
1993). In fact, those courts were not applying the
federal law of the transferor circuit; they were
applying the state law dictated by the transferor
state's choice-of-law rules - just as would be the case
in a typical transfer. Thus, that exception is cabined to
scenarios where federal law is intended to vary
geographically. See Hooper, 688 F.3d at 1046
(explaining that “[f]ederal law is not supposed to be
unitary when it is borrowing limitations periods from the
states”) (internal quotations and alterations omitted);
Eckstein, 8 F.3d 1121 at 1127 (limiting its decision
to scenarios where “different federal courts
properly use different rules”) (emphasis
added). Adopting it here would swallow the general rule that
a transferee court must follow its own circuit's
interpretation of federal law.
extent Monsanto takes issue with the general rule that Ninth
Circuit decisions on federal issues govern cases transferred
to courts within the circuit, this Court is not in a position
to discard it. Moreover, while Monsanto repeatedly intones
that transfer should result only in a “change of
courtrooms, ” that principle springs from
Erie's command that the “accident”
of diversity jurisdiction should not affect the outcome of a
case by allowing a transfer to work a change in the governing
state law. See Van Dusen v. Barrack, 376 U.S. 612,
638-39 (1964); see also Ferens v. John Deere Co.,
494 U.S. 516, 524-26 (1990). The Ninth Circuit rule leaves
open a small possibility that a transfer could result in a
shift in federal law, but that shift does not create the same
problem under Erie. And while there are perhaps
reasons this outcome might be less tolerable in an MDL (most
notably, because the cases are being returned to their
transferor districts at the close of pretrial proceedings),
those reasons do not outweigh the justifications for the
particularly true in this specific context. As a practical
matter it is not clear how the Court would meaningfully apply
the law of different circuits to Daubert motions.
While there are differences in how the circuits frame the
Daubert analysis - and the Ninth Circuit has a
relatively higher tolerance for questionable expert testimony
- these differences can't be defined or applied with any
degree of precision. Moreover, even if it were possible to
apply slightly differing interpretations of federal law,
doing so “would surely reduce the efficiencies
achievable through consolidated preparatory
proceedings.” In re Korean Air Lines Disaster,
829 F.2d at 1175. Thus, the Court will follow the Ninth
Circuit's Daubert caselaw, and more generally
“its own best judgment about the meaning of federal
law, ” for all of the cases in the MDL. See
Eckstein, 8 F.3d at 1126. In future Daubert
briefs, both sides are ordered to discuss all relevant Ninth
Circuit precedent, whether helpful or harmful to their
positions (although they are of course free to rely on
relevant out-of-circuit precedent as well).
IS SO ORDERED.
In re Ford Motor Co., 591
F.3d 406 (5th Cir. 2009), is not particularly helpful to
Monsanto. There, the Fifth Circuit applied the law of its own
circuit after a case had been remanded from an MDL in the
Seventh Circuit. Id. at 409, 413 n.15. While the
court noted that the law of the transferor forum should
control where there are variations in federal law
(specifically, whether to dismiss on forum non conveniens
grounds), it appears that the MDL court simply failed to
consider an earlier relevant Fifth Circuit decision.
Id. at 413-14. Nothing in the opinion suggests ...