Multidistrict Litigation Is on the Rise, Creating Challenges for Attorneys
Many U.S. consumers have seen TV ads put on by law firms representing plaintiffs who may have suffered damages due to a product defect. A recent example involves 3M’s Military Dual-Ended Combat Arms Earplug, which allegedly failed to protect service members from severe hearing loss and tinnitus. More than 250,000 lawsuits have been filed in the 3M earplug case, surpassing the asbestos mass tort in terms of case volume.
On April 3, 2019, with hundreds of related actions pending all over the country, the Judicial Panel on Multidistrict Litigation (JPML) entered an order consolidating the cases and transferring them to the Northern District of Florida. Judge M. Casey Rodgers was assigned to oversee the pretrial proceedings in the multidistrict litigation (MDL). At that point, the litigation took on a decidedly different flavor than the traditional federal lawsuit.
The MDL concept arose in the early 1960s due to a massive antitrust case. Since then, MDLs have become a primary means of handling complex civil litigation, particularly in the areas of products liability, securities fraud, and airline disasters. MDL creates challenges for attorneys because it operates outside the Federal Rules of Civil Procedure (FCRP) and has other distinctive features.
History of Multidistrict Litigation
In 1960, General Electric, Westinghouse, and other electrical equipment manufacturers were embroiled in a major price-fixing scandal. A federal grand jury indicted 45 company executives on bid-rigging charges related to equipment sales totaling $1.7 billion. Many of the defendants received prison sentences and were assessed hefty fines.
Subsequently, more than 1,900 civil lawsuits involving more than 25,000 claims were filed in 36 federal jurisdictions. Concerned that the federal courts would be overwhelmed with that many complex cases, Chief Justice Earl Warren appointed a special committee to find ways to move the cases through the system rapidly.
The Coordinating Committee for Multiple Litigation (CCML) managed the cases aggressively, and all were resolved by March 1967. The process was so successful that MDL was codified and the JPML created to permanently replace the CCML.
How Cases Are Selected, Assigned, and Managed
The JPML decides whether multiple related lawsuits should be consolidated and transferred to one federal district court. Lawyers may also request that their cases be consolidated. The transferee court is chosen based upon the location of most of the actions, witnesses, and discovery materials.
The judge assigned to the case handles pretrial motions, discovery, and settlement conferences and has the authority to dismiss cases or claims. In handling dispositive pretrial motions involving state law claims, the judge must apply the law of the district court where the claims originated. The MDL statute also requires that cases be remanded to the originating court for trial, even if the parties prefer to stay with the transferee court.
However, the judge will select some cases for “bellwether trials” to give the parties an indication of what legal arguments are successful and how much damages they might expect. If plaintiffs in bellwether trials are successful, the defendant may decide to settle the remaining claims. The judge will also encourage a global settlement of all cases.
Critics have complained that MDL encourages “managerial judging,” in which the judge promotes efficiency over due process to clear an overburdened docket. Others have argued that MDL judges overemphasize global settlements to prevent cases from being remanded.
Problems with Multidistrict Litigation
Perhaps the greatest complaint is that MDL judges seldom apply the FCRP, if at all. On the contrary, they often improvise, leading to inconsistencies and unpredictability. And despite the enormous stakes, plaintiffs have limited opportunity to appeal and defendants virtually none.
A unique feature of MDL is the plaintiffs’ and defendants’ steering committees. Because MDL involves lawsuits that were likely filed by different law firms, the judge will appoint a plaintiffs’ steering committee to determine litigation strategy, coordinate preparation, and speak for all plaintiffs in court. If there are multiple defendants, they appoint their own steering committee with court approval. The plaintiffs’ steering committee wields tremendous power, and a handful of lawyers and firms dominate the practice area.
Typically, many MDL plaintiffs — between 30–40% — have no legitimate claim. When law firms run TV ads promoting mass tort litigation, they often collect as many clients as possible. The MDL process lacks an effective mechanism for weeding out meritless claims, negating some of the judicial efficiency that MDL hopes to achieve. Most plaintiffs receive little, if any, settlement money, even if their cases aren’t dismissed.
Immense Scale of Multidistrict Litigation
MDL does provide some benefits to the parties. Plaintiffs can pool their resources, while defendants get to combine depositions and other discoveries in a single court. It’s also cheaper and easier to litigate the same issues of fact before one court rather than many.
Still, critics contend that reform is necessary given the immense scale of MDL. In 2020, the JPML reported that more than half of all civil cases pending in federal court had been consolidated into MDL. In 2021, the U.S. Chamber Institute of Legal Reform estimated that mass tort cases in MDL proceedings accounted for 67% of all private civil cases pending in U.S. district courts. In addition to the 3M earplug litigation, noteworthy cases involve hernia surgical mesh implants, Roundup weed killer, Zantac heartburn medicine, and Johnson & Johnson talcum powder.
Lawyers who wish to practice in this area should familiarize themselves with the unique characteristics of MDL. As long as the current process remains in place, more and more civil cases will be filed as a result of ads run on television.
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