[1] A federal panel just granted a motion to send multiple medical device liability cases against your company to a single federal judge in a multidistrict litigation, or “MDL,” proceeding for “disposition.” Your lawyer made good use of the five minutes the panel gave for argument against the unreviewable multimillion-dollar decision, but the panel nevertheless decided against your company.[2]
What you now face is something very different from the ordinary legal case.
You have always been told that the purpose of a lawsuit is to resolve a genuine dispute in a reasonable way. In an ordinary case, the lawyers and the judge would be familiar with the applicable state law. The legal process would identify the parties to the dispute, include them, and keep out those not involved in it. The process would be roughly proportional to the stakes in the dispute. In other words, the process that was “due.” The judge’s job would be to decide the legal issues presented without putting a thumb on the scales. The jury would consider only evidence relevant to your case. If resorting to an outside mediator did not result in settlement, you would have a meaningful opportunity for appellate review.
If you are lucky, the multidistrict litigation your company now faces may in some way resemble that model. But – especially if you face a large number of claims – you should be prepared for a system that is quite different. And that different system now encompasses roughly half of all the civil cases filed in our federal district courts.[3]
The parties. To begin with, the cast of characters in multidistrict litigation may be quite different.
Many of those who sue your company may not actually have a claim. The lawyers who brought the suit may have collected clients by running television ads after the FDA required your company to change a warning label. Some lawyers collect as many clients as possible not only to earn fees directly but also because more clients mean a greater chance of being chosen for the plaintiffs’ lawyer steering committee. That committee gets to divide up a percentage of all settlements at the end of the case. That may or may not explain why in the Fosamax litigation, 31% of all cases selected for discovery were later dismissed.[4]
Of course, a conscientious MDL judge may enter an order that requires the production of medical records or identification of other evidence to support claims in the plaintiffs’ fact sheets. Such a judge may even take it a step further and require the filing of expert reports for each plaintiff, but that is rare.[5]
Some of the parties may be invisible. The lawyers may have gotten the money to run the television advertising from litigation funders. Traditionally, rules against champerty and maintenance prohibited third-party funding of lawsuits. That is because the purpose of litigation is to resolve the dispute, not to make a profit for persons with no connection to it.[6] But courts today are less likely to enforce those rules. In fact, the lawyers who ran the ads likely will try to keep you from finding out whether they are secretly funded by outsiders and, even if you discover their presence, may fight tooth and nail to keep you from finding out how much control the funders have over the litigation.
Again, you may be lucky and persuade the MDL judge to let you at least look at the funding contracts to see whether they create a conflict of interest between lawyer and client that could invalidate client consent, or surrender control to the funder by requiring such things as funder selection or payment of experts, funder oversight of settlement, or funder receipt of the first dollar of settlement amounts. But in some circumstances, all that judges have required is a conclusory statement that the funders, who may have invested millions in the case, have no control over how their money is being spent.[7]
Other parties to the underlying dispute will never make it into the courtroom. Although the litigation will be for the purpose of deciding safety issues arising out of the implantation of a medical device by a surgeon operating in a hospital, do not expect to see either the surgeon or the hospital as a party in the litigation. The lawyers representing the patients who sued want the surgeon to be on their side. They want the surgeon to pin the blame on your company, or at least stay neutral, and they may see the surgeon as a source of future referrals. Your company, on the other hand, does not want to earn a reputation for blaming its customers even though it does not control who the hospital allows to implant your devices.
And even if the surgeon testifies, the lawyers for the patient will likely try to keep out of evidence the views of the medical associations, which would play an important role in any thorough and responsible attempt to evaluate the underlying safety issues, such as a Congressional or agency hearing or even a malpractice suit.[8]
The pleadings. Do not expect initial pleadings that mean very much to be filed by lawyers who know very much. The plaintiffs will file a master complaint and your side will file a master answer. These will list all conceivable claims and all conceivable defenses without regard to the law of any particular state. Individual plaintiffs will then file “short form” complaints which are supposed to reveal more about their claims.
Both sides will be represented by national counsel. On the plaintiffs’ side, the MDL judge will choose a small number of lawyers to handle the litigation as a committee. On your side, you will want counsel who are familiar, or can quickly become familiar, with your company and your device. You will also want them to have experience with litigation under the product liability laws of multiple states and conflict of law issues. If you are fortunate, they will also know lawyers in each state who can help them if needed in motion or trial practice.
But even when motion practice begins, you will get, and may even want, an assembly line process. The lawyers on both sides whose names actually appear on pleadings have probably never looked at them. They take full responsibility but rely on their teams to get things right. And, it is likely that none of the lawyers who primarily drafted the motions will be licensed to practice law in the state whose law governs a particular case in a multidistrict proceeding. But that will put them on an even playing field with the judge, who could be equally unfamiliar with that law.[9]
Managerial judging. Diligent judges like to clear their dockets. For some, that is the measure of what they do. If they fail to do it, they may be called on the carpet by their fellow judges. That is one of the few things short of outright misconduct that will get a judge in trouble.
Even in the ordinary case this creates a potential for what Yale law professor Judith Resnick decried in 1982 as “managerial” judging.[10] A judge who acts as a manager interjects the judge’s institutional interests into the case. That denies due process if those interests influence rulings on the merits. When an MDL piles an otherwise unimaginable number of cases onto a judge’s docket, the institutional pressure to “manage” that docket can distort the litigation process in a number of ways.
The most fundamental way is the promotion of “efficiency.” Although the constitutional guarantee of due process requires that the law afford a process commensurate with the stakes and the risk of error,[11] even a fair judge will seek to provide as little process as possible. Shakespeare reminds us that “they that have the power to hurt” may sometimes “do none.”[12] But even the most conscientious MDL judge will face great temptations.
Settlement first. Under the ABA’s Model Rules of Judicial Conduct, it is unethical for a judge to be involved in settlement discussions if that results in “coercion.”[13] And the judge cannot discuss the case with each party separately – unless the parties consent. As a practical matter, this means that the judge who wants to monitor the progress of settlement will be allowed to do so. After all, “[m]ost MDL judges view their job as attempting, whenever possible, to dispose of cases so that they are not remanded to the transferor courts.”[14] Most parties will not be so bold as to resist the entreaties of the judge who holds the ability to rule on the merits in his or her hands. And in an extreme case, the court may abandon all pretense. In 2018, at the very first meeting with counsel in the MDL created for the opioid litigation, the judge declared that he didn’t “need a lot of briefs” or trials and that his objective was to “to do something meaningful to abate this crisis and to do it in 2018.”[15]
No oral argument. To begin with, your lawyers can pretty much forget about arguing a motion in person before a judge, no matter how important it may be. So, you need lawyers who can write. Physical presence and booming voice are less important than they once were.
No rehearing. Although the federal rules of civil procedure allow for rehearing of an interlocutory ruling whenever there is “just cause” for doing so,[16] do not expect that in your cases. The fear that an altered ruling would encourage such motions and upset settlement expectations will hang over every request for reconsideration. It will likely be unavailing that the judge relied on a decision in a case to which your company was not a party, or that you point out controlling statutes that call for a different result.[17]
In fact, you will be doing well if you can persuade the judge to acknowledge that “just cause” is the standard for rehearing and not the more restrictive newly-discovered evidence standard that is properly applied only to post-judgment motions.[18]
Multiple plaintiff trials. Social science studies have shown that juries faced with multiple plaintiffs who complain about similar injuries are more likely to find in their favor than plaintiffs in cases tried singly.[19] In the hip implant MDL in Texas, the district court tried a single plaintiff case which the defense won. When that did not settle the remaining cases, the court held a trial in which five plaintiffs pressed their claims together and received a $502 million verdict. For good measure, the district court also let plaintiffs’ counsel compare the defendants to Saddam Hussein, something that caused the appeals court to reverse the judgment.[20]
Ostensibly, the purpose of a multi-plaintiff trial is either to resolve more cases or to get verdicts that help establish the value of differing claims. But neither of these withstands scrutiny. If there are hundreds of claims, resolving five instead of one is not a meaningful step. And juries have proven to be notoriously incapable of differentiating among plaintiffs, as shown by the award of similar damages amounts to very differently situated plaintiffs.[21]
Curtailed appellate review. Your biggest disappointment can be the lack of appellate review. If you win on summary judgment, the plaintiff can appeal, but if you lose, there is no appeal absent certification, which the district court controls. If you lose at trial, you will have only a few pages to address each of the issues in your brief even if those issues each have multimillion-dollar consequences. Appellate courts can have limited attention spans, page extensions are not favored, and much of your brief will be spent attempting to show that the verdict on liability was not supported by the evidence. And you may not be able to raise all of the important issues, because the more issues you raise, the more it will look like you lack confidence in any of them. Further, your ability to complain about what happened in the district court will be constrained by the knowledge that the court still has control over all your other pending cases.
Then you may encounter a truly perverse phenomenon – appellate sympathy for the by-definition “overworked” MDL judge. Due process principles require more process when the stakes are larger. Logically, that should mean higher scrutiny on appeal. But, to the contrary, some appellate courts have actually come to the opposite conclusion and said that more deference should be given to the district judge because of the burden of case management.[22]
And the fact that an appeal comes from an MDL has not yet been included in the grounds for en banc appellate court review[23] or U.S. Supreme Court review.[24] In fact, under existing standards, U.S Supreme Court review is less likely because the consolidation of the cases in one court makes it unlikely that there will be a conflict among the circuits. In fact, some MDL judges believe it is their duty to prevent circuit conflicts.[25]
If you are inclined toward philosophy, you might wonder why in the world our legal system would put important issues of medical safety in the hands of a system as potentially dysfunctional as this, instead of committing them to a federal agency like the FDA. At the agency, all who are actually involved can be heard by experts who, after a public hearing open to all interested parties, have considered a large body of evidence collected by the agency and found in scholarly studies.[26] But the answer to that question is beyond the scope of this article.
[1] Luther Munford is Of Counsel at Butler Snow LLP in Ridgeland, Mississippi. The author is grateful to Butler Snow lawyer Nikita McMillian for her assistance.
[2] See John G. Heyburn II, A View from the Panel: Part of the Solution, 82 Tul. L. Rev. 2225, 2235 (2008) (practice to allow “between two and five minutes to present his or her party’s position”); David F. Herr, Multidistrict Litigation Manual § 4:23 (2021) (maximum of 20 minutes for each matter). The panel’s discretion has been described as “unfettered.” Robert Klonoff, The Judicial Panel on Multidistrict Litigation: The Virtues of Unfettered Discretion, 89 U. Mo. Kan. City L. Rev. 1003, 1005 (2021) (“[I]t is virtually impossible to challenge the JPML’s crucial decisions[.]”); Elizabeth Cabraser, The JPML Hearing: A Plaintiff’s Perspective, 89 U. Mo. Kan. City L. Rev. 827, 827-829 (2021) (explaining that counsel offer “what may seem like mere snippets of argument” to panel not governed by the Federal Rules of Civil Procedure).
[3] Jeff Lingwall, Isaac Ison & Chris Wray, The Imitation Game: Structural Asymmetry in Multidistrict Litigation, 87 Miss. L.J. 131, 132 (2018) (“roughly half the modern federal docket”).
[4] See Oakley v. Merck & Co., Inc., No. 107-cv-03652-JFK, 2010 WL 1779276, at *2 (S.D.N.Y. Apr. 27, 2010) (dismissal for failure to file complete plaintiff profile form); Letter from Susie Lees, Exec. Vice President, Secretary & General Counsel, Allstate Ins. Co. et al., to Rebecca A. Womeldorf, Secretary, Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts (Oct. 3, 2019), https://www.uscourts.gov/sites/default/files/19-cv-aa-suggestion_from_45_companies.pdf (31% of cases selected for discovery dismissed). See generally In re Gen. Motors Ignition Switch Litig., No. 14-MD-2543(JMF), 2016 WL 1441804, at *9 n.4 (S.D.N.Y. Apr. 12, 2016)(“some credence” given to allegation by plaintiffs’ counsel that lead counsel had flooded MDL with meritless cases to gain leadership position); Eldon Fallon, Common Benefit Fees in Multidistrict Litigation, 74 La. L. Rev. 371, 372 (2014) (describing use of committees and common benefit fees). See also Richard B. North, Jr., MDL Remands: A Defense Perspective, 89 U. Mo. Kan. City L. Rev. 997, 999-1001 (2021) (collecting estimates of marginal claims and describing claims brought solely because of advertising).
[5] See 28 Fed. Proc. § 64.56 (2021) (order requiring plaintiffs to provide factual support for claims) (citing Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507, at *1 (N.J. Super. Ct. Law Div. 1986)).
[6] See Luther T. Munford, The Peacemaker Test: Designing Legal Rights To Reduce Litigation Warfare, 12 Harv. Negot. L. Rev. 377, 391 (2007) (power to compel and control participation needed to resolve dispute).
[7] See, e.g., In re: Nat’l Prescription Opiate Litig.,No. 1:17-MD-2804, 2018 WL 2127807, at *1 (N.D. Ohio May 7, 2018) (ordering the parties to submit, inter alia, sworn affirmations that the financing did not “(1) create any conflict of interest for counsel, (2) undermine counsel’s obligation of vigorous advocacy, (3) affect counsel’s independent professional judgment, (4) give to the lender any control over the litigation strategy or settlement decisions, or (5) affect party control of settlement”). See generally Luther T. Munford & Katelyn R. Ashton, Discoverability of Third-Party Litigation Financing, Pro Te Solutio (June 8, 2020), https://protesolutio.com/2020/06/08/discoverability-of-third-party-litigation-financing/ (collecting cases on disclosure and criticizing reliance on attorney statements denying control). Fraudulent claims generated by litigation finance companies are discussed in Barbara Binis, From the Prosaic to the Sublime: One Defense Lawyer’s View on Five Factors That May Improve the Effective and Efficient Settlement of Multidistrict Litigations and Mass Tort Claims, 89 U. Mo. Kan. City L. Rev. 963, 969-970 (2021).
[8] Benson v. Boston Scientific Corp., No. 6:18-cv-02456-DCC, 2018 WL 4594432, at *4, *7 (D.S.C. Sept. 25, 2018) (expert in pelvic mesh MDL case cannot tell the jury that the relevant medical associations have issued position statements endorsing its use).
[9] See Salve Regina College v. Russell, 499 U.S. 225, 238-40 (1991) (appellate courts not to give weight to district court judge’s knowledge of law of state in which judge sits).
[10] Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374, 425-431 (1982) (describing “erosion of due process safeguards”).
[11] Matthews v. Eldridge, 424 U.S. 319, 334-35 (1976).
[12] William Shakespeare, Sonnet 94, https://www.poetryfoundation.org/poems/45100/sonnet-94-they-that-have-the-power-to-hurt-and-will-do-none (last visited May 14, 2021).
[13] The ABA’s 2007 Model Code of Judicial Conduct in Rule 2.6 says a judge “shall not act in any manner that coerces any party into settlement” and in comment 3 says if a judge receives information that could influence decision making, “the judge should consider whether disqualification may be appropriate.” Model Code of Judicial Conduct R. 2.6. cmt. 3 (2007). The Code of Conduct for United States Judges, Canon 3A(4) says a judge “should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.” Code of Conduct for U.S. Judges Canon 3A(4) (2019), https://www.uscourts.gov/sites/default/files/vol02a-ch02_0.pdf. See Nancy A. Welsh, Magistrate Judges, Settlement, and Procedural Justice, 16 Nev. L.J. 983,1006-1011 (2016) (discussing applicable ethics rules).
[14] Robert H. Klonoff, Federal Multidistrict Litigation in a Nutshell 243 (2020), quoted in Stephen R. Bough and Anne E. Case-Halferty, A Judicial Perspective on Approaches to MDL Settlement, 89 U. Mo. Kan. City L. Rev. 971, 975 (2021) (“each judge must decide the extent of his or her engagement in settlement talks”). But see id. at 982 (“Forcing settlement on defendants only feeds the flames of plaintiff lawyers’ advertising, monopolistic behavior in pre-formed committees, and third-party litigation finance.”)
[15] Elizabeth Weeks, Financial Impact of the Opioid Crisis on Local Government: Quantifying Costs for Litigation and Policymaking, 67 U. Kan. L. Rev. 1061, 1078-79 & n. 127-130 (2019) (citing Tr. of Proceedings at 4-5, In re Nat’l Prescription Opiate Litig., No. 1:17-MD-02804 (N.D. Ohio Jan. 9, 2018), ECF No. 58 and subsequent criticisms). See Richard A. Nagareda, Mass Torts in a World of Settlement, at ix (2007) (purpose of mass tort settlements is to make and enforce a “grand, all-encompassing peace”).
[16] Fed. R. Civ. P. 60, advisory committee’s note (1946) (explaining that interlocutory decisions “are left subject to the complete power of the court rendering them to afford such relief from them as justice requires”).
[17] See Luther T. Munford, Courts v. FDA: A Lesson from Pelvic Mesh Litigation on Relative Competence to Decide a Legal Question, 76 Food & Drug L. J. 6 (2021) (describing legal error by MDL court which neither trial court nor appellate courts have been willing to correct in cases involving other parties and different facts).
[18] Marconi Wireless Telegraph Co. v. U.S., 320 U.S. 1 (1943) 47-48 (“interests of justice” test); Am. Canoe Ass’n Inc. v. Murphy Farms, Inc., 326 F.3d 505, 514-515 (4th Cir. 2003) (distinguishing standard that applies to post-judgment motions). But see Premier Entm’t Biloxi LLC v. James River Ins. Co., No. 1:06cv12-LTS-RHW, 2008 WL 191171, at *1 (S.D. Miss. Jan. 18, 2008) (applying post-judgment standard to review of interlocutory order).
[19] See Irwin A. Horowitz and Kenneth S. Bordens, The Consolidation of Plaintiffs: The Effects of Number of Plaintiffs on Jurors’ Liability Decisions, Damage Awards, and Cognitive Processing of Evidence, 85 J. Applied Psych. 909-911 (2000) (even in carefully controlled experiment “increase in information load is the one dimension of evidence complexity that most undermines jury competence”); Peggy L. Ableman, et al., The Consolidation Effect: New York City Asbestos Verdicts, Due Process and Judicial Efficiency, 30 Mealey’s Asbestos Litig. Rep.: Asbestos 1 (2015) (consolidation increased the likelihood of a plaintiff’s verdict and the amount of damages).
[20] In re Depuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 753, 763-64, 784-86 (5th Cir. 2018). The district court reduced the judgment to $151.6 million. Economic compensatory damages were $500,000.
[21] See Eghnayem v. Boston Scientific Corp., 873 F.3d 1304, 1314-15 (11th Cir. 2017)(refusing to set aside consolidation despite four similar (including two identical) personal injury awards exceeding $6 million because to rely on similarity would be an argument that “worked backwards”); Campbell v. Boston Scientific Corp., 882 F.3d 70, 76 (4th Cir. 2018)(no abuse to consolidate despite four similar awards exceeding $4 million; consolidation represented considerable “savings of time and money” and promoted settlement of other cases).
[22] See Gaydos v. Guidant Corp., 496 F.3d 863, 867 (8th Cir. 2007) (“MDL courts must be given greater discretion to organize, coordinate and adjudicate its proceedings . . . .”); In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1222 (9th Cir. 2006) (because Congress has ordered just and efficient conduct of the actions, 28 U.S.C. § 1407, “considerations that may inform the exercise of discretion” may be different). But see In re Nat’l Prescription Opiate Litig., 956 F.3d 838, 844 (6th Cir. 2020) (granting writ of mandamus with observation that “MDLs are not some kind of judicial border country, where the rules are few and the law seldom makes an appearance”).
[23] Fed. R. App. P. 35(a) (grounds for seeking en banc review).
[24] Sup. Ct. R. 10(a) (reasons for granting certiorari from federal court of appeals).
[25] See In re Zantac (Rantidine) Product Liability Litigation, __ F. Supp. 3d __, 2021 WL 5050347, at *14 (S.D. Fla. Nov. 1, 2021) (certifying claims under Fed. R.Civ. P. 54(b) to avoid “different inconsistent rulings on federal preemption in every circuit court in the United States”).
[26] See Riegel v. Medtronic, Inc., 552 U.S. 312, 325 (2008)(“A jury… sees only the cost of a more dangerous design and is not concerned with its benefits; the patients who reaped those benefits are not represented in court.”).
Finis
