MDL Procedures At-Risk For Closer Scrutiny Going Forward


By: Ryan Babcock

For years, the resolution of large-impact product defect and personal injury litigation has been shifting away from class actions in favor of Multidistrict Litigation cases that are consolidated in front of one judge in the federal and state systems.  

A recent scholarly article authored by University of Georgia law professor Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 N.Y.U. L. Rev. 71 (2015), offers some empirical evidence that supports many anecdotal stories and apparent trends regarding the management and resolution of these types of cases, and points to the likely need for additional future regulation of these kinds of cases, especially in the federal system.

The MDL process was set up and is used for the pretrial management of similar cases, and typically, a steering committee of experienced plaintiffs lawyers are appointed by the MDL judge to help manage discovery, and usually, to guide the case toward settlement.  As Professor Burch’s research indicates, those panels are overwhelming stocked with repeat players from the plaintiff’s bar, both individually and from a select group of firms. 

There are some practical reasons why we see so many repeat players from the plaintiffs’ bar, and why there likely will not be a sea change in that practice going forward.  When determining leadership positions, and presence on these committees, the MDL judge has many considerations in mind, but one is that the judge will usually need counsel from a plaintiff’s firm that has the financial resources to manage the case and see it through discovery, and potentially settlement or one or more bellwether trials, which can be an expensive proposition when dealing with the vagaries of discovery and cutting-edge tort suits that may not have a ready “play book,” as is often the case in this type of litigation.  That factor tends to guarantee that a relatively small number of firms and lawyers will tend to receive more appointments in these sorts of cases.

Nonetheless, that same MDL system creates financial disincentives and ethical pitfalls that often leave individual plaintiffs with different interests than their counsel, and the lead plaintiffs’ counsel, may have.  Corporate defendants are then placed in the often awkward position of trying to resolve those cases, even when confronted with these professional hurdles and conflicting interests, which can impact the ultimate value of the case at settlement.  Meanwhile, MDL judges are struggling with reigning in felt excesses, all without a solid basis for doing so under the Federal Rules of Civil Procedure, or federal statutory law, as contrasted with their considerable authority in the class action setting, as set forth in Rule 23 of the Federal Rules of Civil Procedure.  And all of this is done without meaningful appellate review, as these cases are usually settled before these cases make it that far in the process.  In total, these circumstances point to the potential for new rulemaking in this area to help address some of these systemic issues going forward.

Several MDL actions are winding their way through the federal courts, including in Georgia, and many of those cases impact product liability claims in the health care industry.  Given the complexities and shifting landscape in this kind of litigation, it is important for medical companies, and others facing the potential consolidation of personal injury suits, to stay abreast of these developments, and to consult with counsel as needed.