Mass Tort Multidistrict Litigation (MDL) Proceedings

When multiple civil actions involving one or more common questions of fact are pending in several different federal district courts, those actions can sometimes be transferred to one district court for coordinated and consolidated management and pretrial proceedings under a single judge. Congress created the Multidistrict Litigation (MDL) Panel in 1968 to handle these types of cases. The purpose behind implementing MDLs was to streamline and manage large numbers of relatively complex, but factually similar, claims in a consistent manner. This would ideally reduce backlog in federal courts and reduce duplicative discovery, allowing the courts to administer mass claims in a more coherent fashion. read more...

Unfortunately, the plaintiffs’ trial bar has found ways to game the mass tort litigation system and have devised ways to lump claims together so as to avoid federal jurisdiction. As a result, thousands of cases involving national controversies that should belong in federal court are being handled by a few “magnet” state courts—even though those courts have no relationship to the parties and have no business being involved. This often has the unfortunate effect of dragging innocent small businesses, unlucky enough to be located in a trial lawyer-friendly jurisdiction, into burdensome and expensive litigation.

Furthermore, even if a case is able to be heard in a federal mass tort MDL proceeding, some plaintiffs’ counsel file thousands of advertising-generated claims without properly investigating those claims’ legitimacy. This goes on unimpeded because MDL courts often limit the ability of defendants to scrutinize individual claims within an MDL. As a result, MDL proceedings are often clogged with bogus claims, prejudicing both plaintiffs with legitimate claims and defendants. Additionally, MDL courts sometimes force “bellwether” trials, despite their mandate to only conduct pre-trial proceedings, and use the results of those trials to pressure settlements.

Even though the cases in mass tort MDL proceedings account for roughly 35% of all civil lawsuits pending in the federal court system nationwide, appeals from key rulings in those proceedings are rarely allowed.

The Fairness in Class Action Litigation Act of 2017 (FICALA) will make a number of significant changes to the class action litigation system and also help address many of the significant abuses that turn MDLs into a mechanism of extracting strong-armed settlements from defendants, who are many times effectively deprived of their day in court.

The significant changes to the current state of the mass tort MDL system that FICALA makes include:

  • Help fix the magnet state court problem by requiring courts to determine jurisdiction on an individual case basis in a MDL. This will help prevent lawyers from lumping together unrelated personal injury claims in multiple-plaintiff lawsuits solely to avoid federal jurisdiction.
  • Ensuring that MDL courts only conduct trials when all parties agree to such, putting an end to the use of “bellwether” trials, which are often forced upon plaintiffs and defendants to pressure them to settle.
  • Requiring that claimants (the allegedly injured parties) get 80% of any settlement payments, notwithstanding any fee demands by their lawyers. All too often under the current system, trial lawyers walk away with more than their clients.
  • Requiring federal appellate courts to hear appeals from orders issued in MDL proceedings where immediate review may materially advance the ultimate termination of the case.

FICALA would put MDLs back on the right track towards being a means of making the management of federal civil cases more efficient, rather than a tool used by trial attorneys to extract massive, pressured settlements from defendants.


West Virginia's Climb: Lawsuit Climate Progress in the Mountain State and the Path Ahead

January 10, 2018 | West Virginia has begun shedding its reputation for having one of the worst civil justice systems in the nation. The state's lawsuit climate ranked dead last or second to last in surveys of business executives and attorneys conducted eleven times over the past fifteen years--until 2017. This report explores the beginning of the state's encouraging transformation and highlights areas where it may continue this progress.

ILR Research Review - Fall 2017

November 30, 2017 | This special double-issue of the ILR Research Review features a wealth of insight and analysis on the world's rapidly changing litigation environment. The research contained in this issue targets exploitative litigation at home and abroad, examining numerous developments ranging from hyper-aggressive trial lawyer advertising in the U.S. to the imminent expansion of class actions in Europe.

All Results for Mass Tort Multidistrict Litigation (MDL) Proceedings

In the News Today - August 21, 2017

August 21, 2017 | News and Blog

Jury Hands J&J, Bayer Win In 3rd Xarelto Bellwether: A Mississippi federal jury found for the defendants in the third bellwether trial over Xarelto. This was third bellwether trial over the litigation. The defendants have won all three. Read More »

The ILR Research Review - Spring 2017

May 08, 2017 | Research

This edition of the ILR Research Review offers valuable insights from ILR's recent research on the latest trends in litigation and the tactics and strategies entrepreneurial plaintiffs' firms are using to expand their business models and bring more lawsuits in local, state, federal, and international courts. Read More »

A Handful of Plaintiffs' Lawyers Dominate MDL Litigation

April 28, 2017 | News and Blog

A recent story from Reuters writes that consolidated multidistrict litigation (MDL) "comprised 36 percent of the entire civil caseload of the federal court system in 2014, up from 16 percent in 2002." Read More »

The Food Court: Trends in Food and Beverage Class Action Litigation

Author: Cary Silverman and James Muehlberger, Shook, Hardy & Bacon L.L.P. | February 24, 2017 | Research

This paper examines the emerging litigation trends in the food and beverage industry and makes concrete recommendations for reforms, outlining the role that the courts, legislatures, and regulatory agencies all have in restoring common sense to food class action litigation. Read More »

MDL Proceedings: Eliminating the Chaff

Author: John H. Beisner, Jessica D. Miller, and Jordan M. Schwartz, Skadden, Arps, Slate, Meagher & Flom LLP | October 27, 2015 | Research

This paper suggests procedural improvements to weed out dubious and fraudulent claims in the early stages of multidistrict litigation (MDL) proceedings to prevent them from becoming "lawsuit magnets." Read More »

Lawsuit Ecosystem II: New Trends, Targets and Players

Author: Victor E. Schwartz & Cary Silverman, Shook, Hardy & Bacon LLP | December 04, 2014 | Research

This report, authored by a distinguished group of practitioners, explores the evolving lawsuit "ecosystem." It considers how plaintiffs' lawyers generate litigation and significant developments that will spur more lawsuits or rein in excessive liability. Read More »

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