Once the federal courts form an MDL (Multidistrict litigation), a plaintiff’s steering committee is appointed to run the lawsuit, take discovery and make decisions on behalf of all clients.
To facilitate the filing of new actions, the courts will create websites with short-form complaints and plaintiff’s fact sheets, allowing plaintiff lawyers to focus on marketing and finding clients.
Today there are 247 federal MDL dockets with a total of 135,000 actions pending. Multidistrict litigation now comprises 36 percent of the entire federal civil caseload — up from 16 percent in 2002 — demonstrating the success of the MDL approach.
The steady use of MDLs to resolve mass harms has eclipsed the older approach of filing class actions. Certifying a nationwide class action under Federal Rule 23(b)(3) has become much more difficult because of recent US Supreme Court decisions and new federal laws. Unlike class actions, mass tort cases to not require court approval.
Multidistrict district litigation (MDL) is a Congressionally-created case management procedure used by federal courts to consolidate civil lawsuits involving one or more common questions of facts.
Thus, unlike class action lawsuits – which involve only one lawsuit with multiple plaintiffs – MDLs involve multiple lawsuits filed by different parties, often in different jurisdictions.
When Congress created multidistrict litigations through its enactment of 28 U.S.C. § 1407 in 1968, it did so with the intent that MDL “proceedings will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407(a).
By consolidating the hundreds or thousands of cases with common factual issues together for discovery, pre-trial hearings, trial scheduling and settlement conferences, MDLs serve to streamline what would otherwise be duplicative efforts by the various federal courts while also eliminating possible conflicting, simultaneous rulings on identical pretrial issues.
Even if the MDL does not settle, the benefit of the MDL is that each law firm and client will be able to use the evidence that was gathered during the MDL process.
To be eligible for an MDL, the common question among the consolidated lawsuits must be predominantly factual. Indeed, 28 U.S.C. § 1407(a) restricts eligibility only to those actions “involving one or more common questions of fact.” Commonality of a legal question is not, on its own, sufficient.
Moreover, the common question of fact among the consolidated actions must “predominate over individual questions of facts present in each action.” In re Asbestos Sch. Prod. Liab. Litig., 606 F. Supp. 713, 714 (J.P.M.L. 1985). Stated another way, the factual issues in the individual actions cannot be exceedingly different from one another when viewed as a whole.
Whether a case is eligible for, and can ultimately proceed to, MDL is a decision made by the Judicial Panel on Multidistrict Litigation. The Judicial Panel, which consists of seven circuit and district judges chosen by the Chief Justice of the U.S. Supreme Court, determines – on its own initiative or upon a motion of a party – when a group of lawsuits are eligible for an MDL.
Once the Judicial Panel determines that multiple lawsuits should be centralized for a consolidated MDL proceeding, the Panel is authorized, pursuant to 28 U.S.C. § 1407(a), to transfer the lawsuits comprising of the MDL to any federal district court, irrespective of the jurisdiction in which the lawsuits were filed.
The assigned MDL judge then presides over all discovery proceedings, pre-trial motions, and settlements conferences.
If a trial of any single lawsuit within the MDL is necessary, the case is then sent back to the district court in which it was originally filed for trial.
For mass litigation to occur, plaintiffs' attorneys and defendants must believe that the expected value of the litigation is great enough to warrant a significant investment of time and capital.
At the inception of the litigation, estimates of expected value are highly uncertain, stakes and risks are high, and settlement may be hard to achieve because the sides have such disparate views of likely outcomes.