Is It Time to Rethink the MDL for Mass Tort Cases? Posted on September 1, 2015 by William Cash By William F. Cash III. This article was published in the Summer 2015 issue of The Trial Lawyer magazine. The MDL — multidistrict litigation — has been an important part of resolving mass tort cases since its creation in 1968. Over the decades, hundreds of thousands of cases have been resolved through MDL and no one can deny that, at times, its efficiency and economy of scale made that resolution possible. William Cash is a partner in the Levin Papantonio law firm in Pensacola, Florida. He concentrates his practice almost exclusively in multijurisdictional products liability cases. He divides his time between Pensacola and Chicago. Originally, the drafters of the MDL statute did not foresee that the device would be used for product liability mass torts, like those involving defective drugs, medical devices, and other tort claims. Indeed, at that time, there was no such thing as a mass tort the way we understand it today. Product liability itself in the Sixties was still a controversial and newly-developing theory of law. The seminal federal asbestos case, Borel v. Fibreboard, was not even tried until 1971. Initially, many products cases were one-off cases and there was no need for consolidation. Many cases were tried in state court because defendants like retailers and wholesalers could be reached there. But the growth and acceptance of product liability theories, the continual increase in interstate commerce, and the growth of a national products market led to the invention of the concept of the “mass tort.” Plaintiffs increasingly abandoned state-court strategies, and began to use the MDL as a procedural shortcut and as a big stick with which to bring defendants could be brought to justice. State courts are viable alternative This article argues that the MDL has grown, like a creeping vine, to blot out much of the sunlight falling on other forms of litigation. Mass tort cases today routinely center on the federal MDL, with the state-court strategy in relative decline. I argue that there is a place for the MDL in mass torts, but that the state courts remain a viable place to seek justice. It is time for the plaintiffs’ bar to have a frank discussion about whether the MDL should be the only road to resolution. There are concrete drawbacks and problems with an all-MDL strategy that counsel should consider: MDL has become far too routinized and formulaic for defendants. They’ve figured out how to survive and mastered the drill: delay as long as possible; produce a massive document dump; file “silver bullet” motions to try to kill the whole case; chisel down on bellwether trials as much as possible; fold up the tent when it’s time to settle. Having everything neatly in one courtroom with a time-honored roadmap to be followed makes the corporate defense lawyer feel mellow and safe. And that is bad for plaintiffs. Plaintiffs are losing control of the pace of the trial docket. When all of the cases are filed in front of the same judge, those cases proceed in lockstep. The ability to jump an excellent case to the front of the line, ring the bell, and get the company’s attention is lost when all cases are filed in the same trial pool. Having fewer trials, or even no trials, can be bad for plaintiffs. Shocking abuses by corporations don’t come to light when there no trials. And the trial skills we honed in our own backyards begin to atrophy when we don’t have a trial, empanel a jury, and put on the evidence. Cases should be filed in state courts again. Going a state court route, in parallel with an MDL, offers a revitalized approach toward mass torts. It would significantly shake corporate defendants out of their comfort zones. Today’s MDL: an irresistible gravitational pull The MDL-driven mass tort offers a formula that both sides know by heart. You’ve probably heard this story before. Something happens to jump-start litigation. A patient suffers a strange, terrible, and previously unknown reaction to a powerful drug. Or an important paper is published in a medical journal, unveiling a link between a drug and a toxic outcome. Or there is a product recall, because a manufacturer admits it has screwed up and hurt people. Plaintiffs run to file the first few cases. Lawyers get their complaints fleshed out as best as they can, and it is off to the races to see where plaintiffs can build the most momentum. Each lawyer has a personal interest to see his or her case move furthest along because there is personal glory in being the “lead” attorney in a mass tort. Plaintiffs propound early discovery and attempt to tie the company up in their venue of choice. Defendants also try to stall or build momentum, depending on how they feel about each forums, and try to seek early rulings they can trumpet in other courts. At this point, the individual plaintiff’s lawyer still has some control over the course of his suit. She has selected a venue, she has drafted a complaint, and she has shaped discovery toward areas that she thinks will yield the best result for the client. She is negotiating with defense counsel and trying to litigate the case. Then a party in federal court files a motion for centralization with the Judicial Panel on Multidistrict Litigation (JPML). The Panel convenes every couple of months in a different city. For the plaintiff, attendance at this distant hearing is all but impossible. For the plaintiff’s lawyer, attendance can be nearly futile. The Panel is a busy place and there are many potential MDLs on the docket. The Panel usually allots just two minutes per district to make an argument that could set the pace and certainly the fulcrum of a massive litigation for the next several years. Many times some of the lawyers arguing for a particular district don’t even get to speak. Steering committee Argument is held and the plaintiff’s lawyer is told to wait. One day an order comes from the Panel. The federal MDL will be established and all cases transferred to the District of Guam. The court will appoint a “steering committee” of attorneys, mostly from other states, many of whom she does not know nor has ever heard of. If her case was in federal court, she will be at a vast distance from the action. If in state court, the defendants will tell the state court to hold back until the MDL is over. The momentum she built is gone, and the control she had is gone. The MDL becomes the dumping ground for weak cases, mediocre lawyers, and lazy lawyers. What’s happening over at the product manufacturer and its law firms? Before the JPML arrives on the scene, the company faces holy terror. It has sold thousands, maybe millions of units of a product that is alleged to be dangerously defective. Every day there is a new story in the press, popping up all over the country. And suits begin to be filed — some in state court, some in federal court. Partners are having to get on planes to go to scary places like Alabama and Mississippi to attend conferences held in strange dialects. Each case comes with different deadlines to move or plead, and different discovery deadlines. Plaintiffs’ lawyers’ discovery requests keep coming in and each one is different, with a different deadline. The company faces a national whack-a-mole game. It can’t tell what is coming next and can’t keep up with the demands. Then the Panel on Multidistrict Litigation brings order is brought to the landscape, calm to the chaos. The company and its lawyers know that they will soon get a handle on all of the disparate filings and demands by having everything smoothed over and sent to a single judge who will hold back the barbarians. With any luck, it will be a judge who is extremely defense-friendly and willing to dismiss some or all of the cases right off the bat. Only the state court cases will have to be mopped up later. The company sees smooth waters ahead. Maybe a settlement will have to happen, if this can’t get cleaned up. When an MDL does form, as it almost inevitably does, it creates an irresistible center of gravity for the next wave of cases to be filed. Those attorneys who are not sophisticated in the mass torts world, but who think they have one good one-off case, will file it in the MDL because “that’s the place to be.” (This is true even in the cases of MDLs that are not functional. The Accutane MDL still attracts a trickle of filings now and then, even though the federal judge overseeing it actually has a practice of charging plaintiffs the defendants’ attorney fees if they seek to dismiss without prejudice and refile in state court. The MDL becomes the dumping ground for weak cases, mediocre lawyers, and lazy lawyers. There is little incentive to work cases up or push them toward trial. The MDL continues to grow by the simple fact of its own existence. An irresistible target for defendants The MDL, now burgeoning with the majority of all cases, presents an irresistible target for defendants to fire silver bullet motions: motions designed to eliminate the entire mass tort in one shot. One such motion is federal preemption. The Fosamax femur MDL essentially stalled after Merck successfully moved to dismiss on preemption grounds. Another silver-bullet motion is the Daubert motion: if the company can win the science case, the entire mass tort is over. The elimination of general causation experts in the federal Accutane MDL ended that venue’s viability; only the availability of an alternate state-court forum saved the entire mass tort. Other silver-bullet motions can include warning adequacy, general discovery motions, and Lone Pine motions. If all of the cases are sitting in one place — a federal MDL court — then a single silver bullet could kill or fatally wound the litigation. In many cases, the company makes just one offer — take it or leave it — to the entire universe of plaintiffs. Also, the behemoth MDL gives defendants an excellent reason to stall the few state-court cases ever attempted. Despite the fact that we have a federal democracy, with the national and state governments having joint sovereignty, many state court judges will abstain or defer from executing their responsibilities until they see what the federal MDL judge chooses to do. It is almost in the corporate defendant’s interest, every time, to have a stay of state-court discovery against that corporation. Similarly, if the company thinks it can win a key issue in federal court like preemption or Daubert, the company will try very hard to stay any proceedings in the state courts. Assuming the MDL survives all the rifle-shots and other procedural hurdles, plaintiffs may get lucky and actually receive a settlement offer. In many cases, the company makes just one offer — take it or leave it — to the entire universe of plaintiffs. As a result, there is an enormous amount of pressure to accept whatever is being handed out. To wit: it is the rare defense MDL settlement offer that fails these days. It begs the question, who is calling the tune? The bar should consider: if this is the landscape, then whose voice is missing in all this? The local trial lawyer. The person who invested heart and soul in nurturing and developing the case, before there was anyone else who believed in it. The local jury. MDL cases get transferred across the country. In contrast with state court, local citizens do not hear the evidence and don’t get to exercise the power of the jury ballot. States. The states themselves have a historic police power to regulate corporate misconduct, to keep citizens safe and healthy, and to keep bad products off the market. When cases are heard in distant federal courts, the states do not exercise their legal prerogative to protect their citizens. Nor do the states’ own appellate courts get to weigh in on the results. Our clients. They are the ones most badly suffering. They took that worthless pill or drove that car with the dangerous airbag. Their case doesn’t see the light of day. No hometown press tells everyone in town what happened. Our clients’ case rarely goes to trial if it’s in an MDL. It is quietly swept up in a press release, denying responsibility. Opening up a new front in the battle It is time for an honest discussion among the plaintiffs’ bar about a shift in strategy. Rather than the monolithic MDL model where all eggs are in one basket, plaintiff lawyers and their clients who have suffered legitimate, serious losses should consider a polycentric filing strategy. Some cases should still proceed in a federal MDL, but some should be litigated in a parallel track in one or several state courts. Given the well-known disadvantages of a dominant MDL strategy, the bar should consider these questions: Why do we get stuck in “defense judicial hellholes?” In some mass torts, the majority of the cases are filed in courts that we know are unfavorable or unfair to our clients. The “tort reform” crowd annually spotlights the courts it calls hellholes, but we don’t. As the attorneys with the power to file the case in the right venue, why do we permit ourselves to be pulled into defense hellholes at the whim of the Panel on Multidistrict Litigation? Whatever happened to uncertainty being a driver for settlement? Corporate defendants hate uncertainty. They hate it in public relations, they hate it in being unable to predict verdict sizes, they hate everything about litigation that is messy and unstructured and means no fixed price tag can be put on tort liability on the balance sheet. We know this in our bones. So why do we continue to pour so many cases into federal MDLs, when we could get creative and pressure those defendants in different ways, in different states, all over the country? When did we agree to put all our clients into the same generic box? Somewhere along the way from the creation of the modern mass tort, to today, we accepted the notion that all cases were the same, all cases could fit onto the same tidy plaintiff’s fact sheet, and that the same judge could and should decide all the issues. Why? Are we afraid to go to trial? One thing a state-court strategy will surely do is generate more trial days, and sooner. Much has been written to lament the decline of the civil trial everywhere. This is a shame. The best mass-tort lawyers are swashbuckling old trial dogs eager to stand up and fight. If that’s not us any more, we may as well hang up the boxing gloves and admit it. On the other hand, if we want to try more cases and expose more wrongdoing on the other side, we should consider filing our clients’ cases closer to home, where their stories can be told. Our proposal for consideration, is rather than having nearly all the cases filed in the federal MDL, the plaintiffs’ bar consider setting up two, three, or more viable pockets of state-court cases in different states. This would create multiple centers of gravity, where multiple judges and courts will work through cases at different paces. The goal would be to reduce the dominance of the federal judiciary, spread the risk of litigating across multiple venues, give chances for more mass tort trials, and destabilize our opponents, who have become used to following the same old playbook on defending mass torts. By no means is the federal MDL dead, and by no means is it not an important part of any mass tort. Undoubtedly, incredible work has been done through the MDL route, and the economies of scale present have indeed led to some excellent victories. Moreover, there are advantages to having nationwide service of process and the heavy weight of a federal trial court behind discovery plans. But as mass-tort plaintiff attorneys, we are some of the most visionary, creative, and versatile lawyers ever created. We can work in alternative structures, coordinating our efforts as we always have, but without the lockstep procedure of the federal MDL. The bar to litigating and managing a number of cases in state court is lower than it used to be. Many states now have centralization and transfer procedures — “baby MDL” rules — that permit the uniform handling of similar suits in the same place. These include large and favorable jurisdictions like California, Illinois, Maryland, New Jersey, and others. Many other venues permit suit by multiple plaintiffs on the same complaint where the complaint is properly venued as to at least one plaintiff. Still have some of the benefits So the practitioner who wants to pursue a state-centric filing strategy does not have to file a separate case in each county in that state, can still have some of the benefits of consolidation generally, without the black-hole effect of having all cases nationally in the same MDL court. And of course, plaintiffs obtain many of the other benefits of state court, including local involvement by an engaged state judiciary, local hometown juries, access to additional trial dates, and so on. And — apart from what they can do for mass torts at the global level — we should not forget the significant advantages of state court just as a forum. First of all, some would say state court judges are more responsive to attorneys’ practical needs and concerns than federal judges. Some state court judges are elected and thus more responsive to the citizens. Voir dire, a critical part of trial for many plaintiff lawyers, is generally more open and unstructured in state court than in the federal system. The evidence rules in state court can be more favorable for plaintiffs. For example, many states employ the Frye standard for admissibility of expert testimony rather than the federal Daubert standard. And there can be other helpful differences — for example, Hawaii’s state rules permit the admissibility of subsequent remedial measures in products cases. Finally, let’s not overlook the fact that the state courthouse right across the street is much easier to get to than a distant federal MDL court. Some critics — among them repeat players in the federal MDL world — may say that an alternative state-court strategy cannot work. Some may say that the plaintiffs’ bar is too undisciplined, or too uncoordinated to litigate the same case in several venues at the same time. But there are ways to resolve these problems. For one, modern communications and document-sharing technology have never brought lawyers closer together than they are today. For two, there is every reason to negotiate cross-jurisdictional discovery sharing agreements and confidentiality agreements between plaintiffs and defense, to lower the barriers to pursuing a multi-state strategy. It can be done, if we find the will. Some might also argue that, whatever the negatives of putting all eggs in the MDL basket, a federal Plaintiffs’ Steering Committee is at least an efficient means for the sharing of work product and eliminating the duplication of effort. But there can be alternatives to that, too. Nothing would prevent attorneys from forming voluntary cooperative agreements, by contract, a sort of “private PSC.” Such contracts could spell out the duties, benefits, and costs of participation much the same way a federal judge might do in a case management order. But a private contract could be drafted to encompass work done in state court as well as federal court, and could set out reasonable means for sharing discovery and work product across venues. Contracting for work-sharing up front might also provide some certainty over what the common benefit fee might be, and remove the need for judicial involvement in dividing such fees. It is at least an option worth debating. Finally, it may be difficult to obtain and keep jurisdiction over some products defendants in certain states. The defendants always have the threat of removal jurisdiction in federal court. But there certainly are ways to find and keep state court jurisdiction. In drug products cases, local defendants like pharmacies or physicians can anchor jurisdiction. In other kinds of cases distributors, wholesalers, and resellers can also provide in-state defendants. Corporate defendants also have partners, related LLCs and corporations, and other tendrils which could support in-state jurisdiction. It does not matter that some cases cannot avoid the federal MDL. Just having a critical mass — a set of state cases that can’t be ignored, stalled, or put aside — is enough to shake things up and create new opportunities for our clients and our practices. It is time to have a debate.