On The Case

As MDL cases surpass 1 million, defense group's push for early vetting heats up

The defense group Lawyers for Civil Justice announced Wednesday that by its calculations, the cumulative number of cases in consolidated multidistrict litigations, dating back to the first MDL in 1968, has now topped 1 million.

The group is capitalizing on that milestone – and on what it characterizes as exponential growth in MDLs – by intensifying its push for changes in the Federal Rules of Civil Procedure to tighten early vetting of MDL plaintiffs and to allow interlocutory appeals of rulings that could dispose of masses of claims.

The group, which is composed of defense lawyers and corporate general counsel, said that it took 39 years for the number of cases in MDLs to total 250,00, and another 13 years to hit 750,000. But the jump from 750,000 to 1 million cases, according to Lawyers for Civil Justice, came in only one year, from 2020 to 2021. (I should note that the March 15 report said the Judicial Panel on Multidistrict Litigation had consolidated 953,641 cases between its inception in 1968 and September 2020; Lawyers for Civil Justice said nearly 65,000 additional cases have been consolidated in MDLs since then.)

That fast expansion of MDLs, the group said, proves the need for safeguards to weed out unwarranted claims early in MDL proceedings, particularly in cases involving over-the-counter products that can be obtained without prescriptions, like earplugs or heartburn medicine. LCJ contends that advertising by plaintiffs’ lawyers and legal marketers has led to a spike in claims that are not subjected to rigorous vetting – and that the procedures MDL judges are currently using to block unjustified plaintiffs are not working adequately.

“Nobody ever envisioned that MDL litigation would be so significant,” said LCJ general counsel Alex Dahl in an interview on Wednesday. “We’re drawing attention to the million-case milestone because of how important it is for courts and everyone to understand that these cases are being handled in a very different way than one-on-one litigation.”

The rule changes advocated by LCJ are not coming any time soon, if ever. In 2017, the federal judiciary's Advisory Committee on Civil Rules created an MDL subcommittee, which has been hearing from judges, academics and lawyers on both sides of MDL cases. The subcommittee looked closely at the issue of expanding interlocutory appeals in MDL proceedings, according to a January 2021 agenda book, but the advisory committee said last December that it had "suspended consideration of possible interlocutory appeal rules for MDL proceedings," after the MDL subcommittee raised concerns about (among other things) undercutting the authority of MDL judges.

The MDL subcommittee has acknowledged the early vetting issue highlighted by LCJ, but for the moment is waiting for results from pilot “initial census” programs in MDLs involving Juul Labs Inc marketing, 3M Co earplugs and Zantac heartburn medication. Those programs seek to collect from plaintiffs some of the usage and injury information that, in the view of defendants, is missing from all too many claims in mass tort MDLs.

In the Zantac case, in particular, the MDL judge, U.S. Judge Robin Rosenberg of West Palm Beach, called for thousands of plaintiffs, including those in a registry of unfiled cases, to provide information about their use of the product and proof of their injury (or an explanation for why no such proof exists.)

LCJ’s Dahl said even census programs that demand such information are no substitute for a formal rule of civil procedure that would require MDL plaintiffs to offer proof of usage and injury at the very outset of litigation. Plaintiffs in one-on-one personal injury litigation must plausibly allege in their complaints that they were injured by the defendant, Dahl said. The standard should be no different for plaintiffs in MDLs, he said – and the standard should be codified in rules of procedure, not left to the discretion of individual judges.

“LCJ is calling for putting these (standards) in writing in a transparent, fair and efficient way,” Dahl said.

I reached out to two plaintiffs’ lawyers on the civil rules advisory committee, Joseph Sellers of Cohen Milstein Sellers & Toll and Ariana Tadler of Tadler Law, to ask about LCJ’s assertion that the sheer volume of MDL cases shows a need for reform. They declined to comment. The reporter for the MDL subcommittee, professor Richard Marcus of UC Hastings College of the Law, declined to comment beyond the advisory committee’s publicly filed agenda books.

As I said, LCJ doesn’t have much hope right now of persuading rule-makers to adopt its views. The advisory committee’s agenda books show the substantial opposition mounted not just by plaintiffs’ lawyers but also by judges who believe they should maintain discretion to run the MDLs they oversee. Dahl said he’s still optimistic that the subcommittee will be receptive to LCJ’s calls for more stringent vetting of MDL plaintiffs and that, eventually, the rules committee will revisit the interlocutory appeal issue.

“We are in this for the long haul,” he said.

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