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.
[sws_pullquote_right]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. [/sws_pullquote_right]
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.
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:
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.
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.
[sws_pullquote_left] The MDL becomes the dumping ground for weak cases, mediocre lawyers, and lazy lawyers. [/sws_pullquote_left]
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.
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.
[sws_pullquote_left] In many cases, the company makes just one offer — take it or leave it — to the entire universe of plaintiffs. [/sws_pullquote_left]
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?
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:
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.
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.
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.