Trials and Tribulations: Contending with Bellwether and Multi-Plaintiff Trials in MDL Proceedings

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October 21, 2019

Multidistrict litigation (MDL) proceedings are an invaluable mechanism for consolidating and resolving pretrial proceedings, sometimes involving thousands of similar cases against the same defendant(s). Unfortunately, this mechanism is deeply flawed in a way that puts defendants at a distinct disadvantage. 

Earlier this year, ILR published research showing that defendants have unequal access to appellate review, which means they are often forced into years of unnecessary and expensive litigation because of the opinion of a single trial court judge.  

Trials and Tribulations: Contending with Bellwether and Multi-Plaintiff Trials in MDL Proceedings delves further into the growing issues with the MDL mechanism by examining 135 mass tort MDL proceedings. Among other findings, our paper shows how some judges are forcing defendants to participate in “bellwether trials,” sometimes including multiple plaintiffs, with the express purpose of encouraging settlement. This is hugely problematic on a number of levels.

First, the statute that created MDLs does not specifically authorize MDL judges to conduct MDL trials in the first place. 

Second, the Supreme Court in Lexecon held that MDL judges who decide to conduct such trials have to get the consent of all parties to do so—but some judges use their authority to coerce defendants into agreeing or expand these waivers beyond their original intended purpose.   

Third, our research shows that juries in multi-plaintiff MDLs are far more likely to decide in favor of the plaintiffs than they are in single-plaintiff trials.

Finally, Trials and Tribulations: Contending with Bellwether and Multi-Plaintiff Trials in MDL Proceedings calls on Congress to address this clear imbalance by adopting one of two reforms:

  1. By passing legislation to codify Lexecon and expressly prohibit MDL courts from conducting trials without the consent of all parties to the particular case proposed to be tried. Or

  2. Revising the U.S. code to create that prohibition, as well as barring the consolidation of multiple plaintiffs’ claims for trial. 
 
10/21/2019