By Wendy M. Behan – Published in the Daily Journal
The recent shutdown of the federal government put the squeeze on an already clogged court system. Because of the logjam in our courts, litigation generally is becoming more expensive and difficult to manage.
Large-scale litigation makes especially huge demands on an already over-burdened system. Designed to streamline the process, multidistrict litigation (MDL) refers to a special federal legal procedure created to consolidate a range of cases — such as pharmaceutical and other product liability suits, patent infringement and investment fraud cases.
In fact, for cases involving common questions of fact, multidistrict litigation has grown to become the preferred method by parties and the courts as it is an effective tool to centralize a large number of individual cases.
Statistics from the U.S. Judicial Panel on Multidistrict Litigation indicate a sharp rise in MDLs. From 1968 through 2012, there were 415,995 civil actions centralized for pretrial proceedings in MDLs, up from 393,676 in 2011 and 349,913 in 2010.
MDLs can be confusing — even for seasoned attorneys. Although it’s possible for multidistrict cases to include class actions, MDL is not a type of class action (a civil proceeding usually brought about on the behalf of multiple clients with common or similar injuries caused by the same product or action). Unlike class actions, in an MDL there is not a single trial that resolves all the cases; rather, the individual cases are consolidated under a single federal judge.
For cases to be considered for MDL, the judicial panel must find one or more common questions of fact. Since commonality is also a required element for a class action, class actions are often included in MDLs.
Created by an act of Congress (28 U.S.C. Section 1407) in 1968, the U.S. Judicial Panel on Multidistrict Litigation is comprised of seven federal judges, each from a different judicial circuit. The panel was originally developed in response to problems in courts related to a nationwide antitrust conspiracy among electrical equipment manufacturers. Lawmakers and the judiciary agreed that the panel could coordinate such complex cases — which are frequently filed in multiple federal court districts.
With this in mind, the panel was developed to determine whether individual cases involving similar issues should be moved from various courts to a single federal district court for pretrial proceedings. Typically, cases are consolidated under one federal judge who handles common pretrial discovery matters. The goal of this process is to conserve resources — avoiding duplication of discovery and preventing inconsistent pretrial rulings.
Some states, including California with its Judicial Council Coordinated Proceeding, have a similar mechanism known as multicounty litigation. A similar body or the state high court makes the decision to transfer at the state court level. As with MDL, a single judge oversees and administers the cases so that they can be resolved efficiently.
Since its inception, the judicial panel has considered motions for centralization in hundreds of thousands of cases — ranging from airplane crashes and train wrecks to drugs and other products liability cases; patent validity and infringement; antitrust price fixing; securities fraud and employment practices.
As an example, MDL offers an ideal platform for pharmaceutical litigation. Major multinational drug companies can be a formidable opponent for a single firm or victim to take on. MDL enables attorneys to pool their resources to work for common goals. The plaintiffs share the cost of depositions, eyewitnesses, document gathering and review, and more. MDL has many efficient tools which are useful — particularly in pharmaceutical product liability cases — including plaintiff fact sheets— detailed discovery that plaintiffs must complete.
Typically in pharmaceutical and other complex litigation, the individual cases are coordinated into an MDL so that pretrial discovery can be coordinated. As part of the MDL, the judge can select cases for “bellwether” trials. These cases would be tried by the MDL judge and serve as a representative trial in the litigation. The bellwether trials give the parties insight into how a jury might decide other similar cases within the MDL, and may serve to aid the parties in valuing the remaining cases for settlement purposes. If all common pretrial discovery is completed and the cases do not resolve within the MDL, the individual cases are transferred back to the original district for trial.
Corporate defendants also prefer MDL, as proceedings can consolidate all federal cases pending at the time the MDL request is granted. The defendant can also bring in any subsequent state or federal cases as “tag-along” cases. Additionally, at some point, a corporate defendant may be immersed in a multitude of cases in many different courts. Besides the need to monitor each individual case and tap separate counsel for each, allowing separate cases to proceed in different jurisdictions could engender inconsistent rulings. Furthermore, it is more efficient to have each defense witness cross-examined in a single deposition, versus potentially being deposed around the country — increasing the risk of conflicting testimony.
Many prominent cases have been consolidated into MDLs, including: the transvaginal mesh litigation (which has grown to over 30,000 cases in six different MDLs); the BP oil spill litigation in Louisiana, which involves pending actions filed by the U.S. Department of Justice, Gulf Coast states and other plaintiffs following the 2010 Deepwater Horizon explosion; and the Toyota Motor Corp. unintended acceleration litigation in the Central District of California.
Also, the NFL players’ concussion injury litigation in the Eastern District of Pennsylvania recently reached a tentative settlement of more than $765 million for former players and their families. The deal — which still needs to be approved by the federal judge assigned to the MDL — calls for the NFL to fund medical exams, concussion-related compensation and medical research.
Most MDLs involve a few dozen to a few hundred cases. A significant exception to this is MDL No. 875, based in the Eastern District of Pennsylvania — the largest and longest-lasting MDL of all, created by the judicial panel to manage all asbestos personal injury and wrongful death cases. Litigation related to asbestos injuries and property damages is quite possibly the longest-running mass tort in U.S. history — the complex asbestos MDL litigation has been pending for more than 20 years.
Because of the complexity, MDL proceedings take extensive coordination and sharing of information. To accomplish this efficiently and effectively, an MDL court appoints a plaintiffs’ steering committee and a defense steering committee. Attorneys may seek appointment to these committees by submitting an application to the court. The committees then work together and with the MDL judge. While the leadership structure may vary depending on the MDL, the plaintiffs’ steering committee’s purpose remains the same: to represent common interests of all plaintiffs.
To ensure that up-to-date information is available, many MDL judges set up pages within their district court’s website that provide links to the orders and other pertinent information.
Wendy M. Behan is a partner with San Diego-based CaseyGerry and a member of its pharmaceutical and medical device litigation practice team.
