To visit the Butler Snow Coronavirus Hub, click here.

To MDL or Not to MDL: That Is the Question

Today 46% of federal civil cases lie in multidistrict litigation (MDL). MDLs provide a way for the judicial system to consolidate plaintiffs from around the country when those plaintiffs share common litigation-related facts. The question for attorneys and their clients is whether to add their cases to that growing percentage. MDLs have the potential to save substantial litigation costs, but they can cause countless logistical and organizational nightmares.

“When civil actions involving one or more common questions of fact are pending in different districts, such actions can be transferred to any district for coordinated or consolidated pretrial hearings.”[1] A proceeding under the MDL can be initiated by a “judicial panel on multidistrict litigation upon its own initiative” or by a “motion filed with the panel by a party.”[2] If the judicial panel grants the MDL, the relevant cases are then transferred into the MDL by the panel.[3] The MDL court then hears pretrial proceedings, and it must remand the case back to the original jurisdiction “at or before the conclusion of such pretrial proceedings . . . unless [the case] shall have been previously terminated.”[4] The Manual for Complex Litigation guides the Judicial Panel for Multidistrict Litigation in its decision-making process.[5]

MDLs are increasingly popular.[6] In 2002, MDLs made up 16% of the federal civil caseload of the entire country.[7] By 2014, that number was 36%, and if one removes “prisoner and social security cases from the total, cases that typically (though not always) require relatively little time of Article III judges, the 120,449 pending actions in MDLs represented 45.6% of the pending civil cases as of June 2014.”[8]

MDLs can help or hurt a case, depending on one’s perspective. Following are two competing evaluations of the MDL process and its pros and cons.

M E M O R A N D U M

SUBJECT: OF COURSE WE SHOULD SEEK AN MDL!

FROM: CONSOLIDATING CATHERINE

Our client should obviously request to defend the many lawsuits filed against us in an MDL. If our cases meet a few criteria (e.g. having common questions of fact, being spread across the country, having no sign of efficient disposal without transferring to an MDL) then we have good reason to petition the Judicial Panel on Multidistrict Litigation for an MDL.[9]

MDLs offer efficiency. Even the statute creating the MDL mechanism says MDLs are intended to foster “just and efficient” handling of cases.[10] One way the MDL offers efficiency is by eliminating needless duplication of discovery.[11] Working our cases through an MDL could allow our experts and company witnesses to avoid traveling around the country to testify thousands of times, and it might limit the number of times they would have to be deposed.[12] The MDL might also eliminate unnecessary “duplicative work” at the firm, too, by cutting the number of times we have to depose a witness or decreasing the number of unique pretrial motions we have to file.[13] That certainly benefits the client’s bottom line.

Using an MDL can also “avoid an undesirable multiplicity of appeals on similar issues.”[14] MDLs allow courts to rule on general issues – like Daubert motions or issues of general causation – all at once.[15]

Those who complain about the cost of transferring cases from around the country protest too much. The benefits of consolidated motions, depositions, arguments, discovery, etc. more than outweigh the inefficiencies. Once those consolidated motions and arguments are heard and ruled upon, the MDL may have culled thousands of cases down to a manageable number. We can focus our resources on those cases and avoid waste on weaker cases.[16] That efficiency saves us time and the client money.

That said, transferring cases to an MDL does indeed take time, but even that may benefit us. Complex cases require competent experts, extensive document review, and lengthy trial preparation. The extra time might be useful as we attempt to evaluate all the plaintiffs filing suits while simultaneously building the best case for our client.[17]

Seeking an MDL ensures complex matters are handled by an informed judge. The Judicial Panel hand picks MDL judges for their expertise.[18] This judge will be well-prepared to handle cases with obscure or technical topics, like neurological injuries or litigation around cutting-edge technology.[19] And even if the judge is not perfectly informed, she will quickly build a familiarity with the content by handling so many similar cases. The science is on our side—why else would our client have gone to market with the product?—so smarter judges who have a more complete understanding of that science will mean better Daubert rulings and better rulings in general for our clients.

With strong arguments, MDLs provide a way for us to dismiss cases at the summary judgment phase, which is heard by the MDL judge.[20] MDLs present the chance to winnow the time-barred or weak cases in a more efficient manner.[21] Successful summary judgment motions could capture hundreds of plaintiffs, thus saving the client money.

Even if our summary judgment motions fail, the MDL judge will be well-positioned to facilitate an overall resolution of the matters, because she will have a full understanding of how the matters are unfolding. She will be able to separate legitimate grievances from showboating in negotiation. That makes her a quasi-mediator in this context.[22] Settlement is also easier in an MDL because we can target our settlement proposals to the reasonable plaintiffs, thereby proving our willingness to the judge to work toward a resolution and pressuring more difficult plaintiffs to come to the table.[23] Fast movement to a settlement saves time, and the faster we resolve our cases, the more our client saves.

We should also request an MDL to foster consistency. MDLs help guarantee consistent pretrial rulings.[24] Consistent rulings make for predictability for us and the client. And predictability gives us all a clearer view of the optimal strategies we should take when it comes to every aspect of the case, from saving a little time (e.g. “We have lost this motion three times in a row, so we should not file it again”) to settling (e.g. “We are losing every motion! We should settle”). For all the reasons cited above, we should seek an MDL on behalf of our client.

M E M O R A N D U M

SUBJECT: ARE YOU CRAZY? DON’T SEEK AN MDL.

FROM: STANDALONE STAN

Seeking transfer to an MDL is not a good idea. Working cases through MDLs is not necessarily more efficient than handling cases individually. For instance, we lose time transferring cases to an MDL.[25] When time is lost on our end, money is lost for the client.

Much is made over having an “expert judge” to hear many similar cases in these complex matters, but it is much ado about nothing. Judges are not scientists, and their role in litigation is not particularly scientific. The judge only interprets the law.

And if the judge’s job is to interpret the law, MDLs make that job harder. For example, in MDLs, judges apply the choice of law provisions of the original jurisdiction.[26] MDLs thus ask judges to repeatedly apply law with which they are unfamiliar. The stakes of every decision are high because state law differs dramatically in mass tort cases.[27] Volatile decisions on important questions make for uncertain outcomes for clients.

Funneling our cases through one judge presents administrative problems in dealing with the courts. We cannot blame the court’s clerks for being overloaded; MDLs are a new creation, and the court system is not built to handle these “super-cases.”[28] It does not matter how well-equipped the chosen judge may be. She simply may not be surrounded by the support staff needed to handle the MDL in an efficient way.

Overloaded judges and lawyers provide less effective oversight of plaintiffs, too. For instance, plaintiffs in MDLs often must submit “plaintiff fact sheets” describing the basics of their claim. But the fact sheets are notoriously inconsistent and even inaccurate.[29] If courts handled claims individually, they would allow fewer mistakes and have stronger oversight.

If we seek and receive a transfer of our cases into an MDL, the MDL judge will only hear the pretrial portion of the case. The Supreme Court demands that cases be remanded back to the original jurisdiction for trial.[30] If the court does not dispose of all of our cases at the pretrial phase, then we will be forced to educate two judges – the MDL judge and the judge with original jurisdiction – about the material.[31] And then we will still try the case in its home venue, eviscerating the benefit of the consolidation. No matter how you dress it up – either as “multidistrict litigation” or just “litigation” – a lawsuit by any other name is still a lawsuit, and we will still have to try that suit in its original jurisdiction.

Proponents of MDLs say that MDLs allow a single judge to rule on general issues that apply to all or most of the cases at once. That raises the stakes on each of those decisions. If we lose once, the court may exact more than the pound of flesh for that case. Thousands of cases could hinge on a single call. Also, pro-MDL attorneys argue that MDLs can decide on common issues of fact. But many of our clients are in the healthcare industry, where cases are as unique as the human bodies at issue, and “no case is ever truly representative.”[32] Judges may make erroneous assumptions about the common factors allegedly linking hundreds of plaintiffs together—and then make a poor ruling that is magnified by the MDL. One judge making high-stakes decisions that dictate the outcome of every ruling afterward presents obvious dangers.

It is also not clear that MDLs are good for us in the long-run, so we should not feed them in the short-run. MDLs allow plaintiff’s attorneys to file weak cases because MDLs allow those attorneys to spread the cost of litigation over many plaintiffs.[33] We should not march into the MDL breach, because the breach will swallow us up, forcing us to defend against plaintiffs who could be ferreted out in a single case, but may be insulated in an MDL.

Some say MDLs facilitate settlement, but settlement-by-MDL is not a panacea. High-profile MDL settlements might trigger regulatory actions or even additional suits. “Indeed, shortly after BP announced its DOJ settlement, it was hit with sanctions by the EPA . . .”[34] Sometimes what’s past is prologue in the MDL game.

The venue we might be assigned for the MDL could be inconvenient at best and catastrophic at worst. The Judicial Panel is not guided by any clear set of factors or the Manual for Complex Litigation when it assigns cases to an MDL court.[35] Uncertainty over which court may receive the case may mean nothing more than our firm booking every available flight to Wyoming, or it might mean hearing thousands of critical cases in front of an unfriendly judge. Seeking an MDL is akin to putting it all on black.

Given the sheer number of cases in many MDLs, we will also likely have to work with attorneys from other firms if we seek consolidation.[36] The added logistical difficulties of communicating and working across firms on omnibus motions or consolidated discovery could lead to mistakes. The client may be better off having each firm fully handle cases individually. If it is not clear by now, it should be: MDLs are overrated.

CONCLUSION

MDLs are an increasingly popular way to handle a large number of suits, but that does not mean they are appropriate for every case or controversy. While the memos above illustrate two approaches to the question of whether to seek an MDL, attorneys and clients need to carefully consider how these factors and others apply to their litigation.


[1] 28 USCS § 1407.

[2] Id.

[3] Id.

[4] Id.

[5] Federal Judicial Center, Manual for Complex Litigation, (April 11, 2016), http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/public/home.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pages/470.

[6] Martin H. Redish & Julie M. Karraba, One Size Doesn’t Fit All: Multidistrict Litigation, Due Process, and the Dangers of Procedural Collectivism, 95 B.U.L. Rev. 109, 110 (2015).

[7] Duke Law Center for Judicial Studies, Standards and Best Practices for Large and Mass-Tort MDLs, December 19, 2014 at x. https://law.duke.edu/sites/default/files/centers/judicialstudies/standards_and_best_practices_for_large_and_masstort_mdls.pdf.

[8] Id. at x-xi.

[9] In re Concrete Pipe, 302 F. Supp. 244, 255 (J.P.M.L. 1969).

[10] 28 USCS § 1407.

[11] Courtney E. Silver, Note: Procedural Hassles in Multidistrict Litigation: A Call for Reform of 28 U.S.C. § 1407 and the Lexecon Result, 70 Ohio St. L.J. 455, 459 (2009).

[12] In re Concrete Pipe, 302 F. Supp. at 255.

[13] See id.

[14] In re Concrete Pipe, 302 F. Supp. at 255.

[15] Jaime Dodge, The 2014 Randolph W. Thrower Symposium, American Dispute Resolution in 2020: The Death of Group Vindication and the Law?, Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation, 64 Emory L.J. 329, 346 (2014).

[16] Id. at 376.

[17] Id. at 347.

[18] 28 USCS § 1407.

[19] Dodge, supra, at 331.

[20] Redish & Karraba, supra, at 118.

[21] Silver, supra, at 459.

[22] Dodge, supra, at 331.

[23] Id. at 381.

[24] In re Radiation Incident at Washington, 400 F. Supp. 1404, 1406 (J.P.M.L. 1975).

[25] In re Concrete Pipe, 302 F. Supp. at 255.

[26] Andrew D. Bradt, The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation, 88 Notre Dame L. Rev. 759, 763 (2012).

[27] Id.

[28] Dodge, supra, at 331.

[29] Id. at 352.

[30] Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 40 (U.S. 1998).

[31] In re Concrete Pipe, 302 F. Supp. at 255.

[32] Dodge, supra, at 378.

[33] Id. at 348.

[34] Id. at 380.

[35] Redish & Karraba, supra, at 120.

[36] Id. at 112.

Finis