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Multidistrict Litigation

Multidistrict Litigation
by Kelly Hyman, The Hyman Law Firm

What is Multidistrict Litigation?
Multidistrict litigation (“MDL”) is a procedure utilized in the federal court system to transfer all pending civil cases concerning similar types of cases filed throughout the United States to one federal judge in order to efficiently process the cases. MDL’s can involve hundreds or thousands of cases pending in dozens of different federal courts. The Chief Justice of the United States Supreme Court appoints federal judges to sit on a panel (the “Panel”) that determines whether MDL is appropriate for a particular set of cases.

The goal of MDL is to conserve judicial resources and promote consistent court rulings among different lawsuits that involve similar legal issues. Rather than multiple judges issuing piecemeal and perhaps inconsistent rulings on identical issues, the MDL judge makes one decision that applies to all cases in the MDL.

The following types of cases commonly qualify as MDLs:
• suits arising from airplane crashes;
• suits involving dangerous drugs, medical devices, and other products liability claims;
• suits involving employment practices;
• suits involving intellectual property infringement, and
• suits involving securities fraud.

MDL classification is beneficial for both defendants and plaintiffs. Defendants are benefitted by MDL classification because the MDL procedure consolidates the pre-trial process and streamlines multiple cases into one. In addition, defendants usually prefer to have their witnesses deposed only once in the MDL proceeding rather than multiple times–which is what occurs if numerous lawsuits are not consolidated into a MDL–because multiple depositions are time consuming and increase the likelihood that the defendants’ witnesses will give inconsistent answers. For corporate defendants in particular, it is usually cheaper and more efficient to litigate similar issues of law before one judge instead of many judges. On the other hand, MDL classification benefits plaintiffs, and can have negative consequences for defendants, because publicity surrounding a MDL can prompt additional plaintiffs to file lawsuits, which increases the defendants’ exposure for claims. Plaintiffs also benefit from MDL classification because they are able to pool their resources and coordinate discovery efforts, decreasing the amount of money and resources necessary to litigate their cases.

Generally, the MDL court will enter pretrial orders informing lawyers of the deadlines and procedures to be followed in the MDL. An MDL judge also has the power to issue rulings on motions that may be dispositive of similar issues in all of the MDL cases.

What are the factors the Panel considers in approving an MDL?
Proceedings for transfer to an MDL may be initiated by the Panel sua sponte or upon a motion filed with the Panel by a party in any action in which transfer for coordinated or consolidated pretrial proceedings may be appropriate. Pursuant to 28 U.S.C. § 1407, classification as an MDL is appropriate if the group of cases share “common questions of fact,” and transferring the cases to one judge will be convenient for the “parties and witnesses and will promote the just and efficient conduct of such action.” i

Before cases are designated as an MDL and transferred to one federal Judge, the Panel convenes a hearing with notice to all parties. According to the MDL statistics Report ii , there are currently 186 MDLs pending in the United States.

Although the Panel continues to grant more MDL motions than it denies, the Panel has denied a substantial number of MDL motions as the number of requests have increased. Recent decisions from the Panel reflect its preference for other means of accomplishing the same goals of coordination and efficiency, without turning every garden-variety lawsuit into an MDL. The Panel touts old-fashioned transfers iii as an alternative to MDL centralization. When there are a small number of pending cases, and those cases are in their early stages, transfers to a single court by agreement among parties may accomplish the same goals of coordination and efficiency.

Other than common question of facts, the convenience of the parties and witness, and efficiency, 28 U.S.C. § 1407 does not provide guidance regarding what other factors the Panel should consider. However, the Panel often considers the following factors when determining whether MDL is appropriate:
• the avoidance of conflicting pretrial rulings;
• the condition of the docket in the courts that would be affected by transfer;
• the number and size of the cases to be transferred;
• the possibility of coordinating discovery that would otherwise be duplicative; and
• the potential to avoid conflicting class action cases. iv
Parties who oppose MDL classification commonly assert the following arguments:
• the coordination of discovery is not efficient;
• the presence of individual issues, particularly where the injuries alleged are not pathognomonic or occur in others who have not used the defective product, is unfair to the defendants; and
• the small number of existing cases at the time that centralization is sought does not warrant the establishment of an MDL. v

Since 2007, the Panel has frequently denied MDL requests by concluding that the possibility of coordination, the lower number of cases at the time of the request, and/or the presence of individual issues outweigh the benefits of MDL.

MDL is a procedure utilized in the federal court system to transfer multiple pending civil cases with similar factual or legal issues to one federal judge in order to efficiently process the cases. Although MDL’s have many advantages, unfortunately, the Panel. who decides whether to establish a MDL, reject’s MDL’s despite their many advantages.

i 28 U.S.C. § 1407(a)
ii See
iii See 23 U.S.C. § 1404- Change of Venue- (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. (b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.
iv See David F. Herr, Multidistrict Litigation Manual (2013), Ch.5.
v See In re: Cook Medical, Inc., IVC filter MKTG, Sales Practice and Prods. Liab. Litig., MDL No. 2570, ___ F. Supp. 3d __, 2014 WL 5318059 ( J.P.M.L. Oct. 15, 2014).

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