Rules 4 MDLs: Calculating the Case

Report Reveals Products Liability Cases Make Up 90% of All MDL Cases,

42% of Entire Federal Civil Caseload

Growth of MDLs and Large MDLs Requires Updates to the Federal Rules of Civil
Procedure (FRCP) To Ensure Rules Cover All Cases

WASHINGTON, D.C. – October 4, 2018 – Lawyers for Civil Justice (LCJ), a national coalition of defense trial lawyer organizations, law firms, and corporations, today released a new report, Rules 4 MDLs Calculating the Case, that reveals products liability cases dominate multidistrict litigation (MDL), accounting for about 90% of all pending MDL cases as of the end of fiscal year 2017, according to data from the Judicial Panel on Multidistrict Litigation (JPML). This percentage has held firm for more than two decades, while the number of cases pending in MDLs has increased more than 230% and the number of large MDLs has surged, providing clear evidence that products liability cases are driving MDL growth. Moreover, the LCJ study finds that products liability cases, just within MDLs alone, make up 42% of the entire civil caseload as of the end of fiscal year 2017.

The new LCJ report, based on data from the JPML and United States Courts comes at a time when a special subcommittee of the Advisory Committee on Civil Rules is evaluating whether the FRCP should be updated to ensure that they achieve their stated purpose of applying to all federal civil cases. LCJ and others argue that many of the present civil rules were never intended for MDLs and don’t work in these proceedings, particularly those with hundreds or even thousands of individual cases. As a result, courts overseeing these MDLs often employ ad hoc procedures that suffer from a lack of clarity, uniformity, and predictability that the rules are supposed to provide for all civil cases.

“We are witnessing a perfect storm when it comes to our federal civil justice system,” said LCJ Executive Director Andrea B. Looney. “The number of cases in MDLs, most of which are products liability cases, are rising, as are the stakes. Many civil rules and procedures don’t work in MDLs, leading to unfairness and unpredictability in nearly half of the entire civil docket. And these trends are now being fueled by the rapidly growing and still largely secret third-party litigation funding industry, combined with jurisdictional rulings and class action changes that have created more mass tort cases and driven them into federal courts. We need rules that work for all cases in today’s civil justice system, including MDLs, or the promise underlying the FRCP of ‘just, speedy and inexpensive’ determinations of all cases by our courts will be overtaken by this lawsuit tsunami.”

LCJ’s Rules 4 MDLs: Calculating the Case found that:

MDL cases represent 47% of the entire civil caseload as of the end of FY 2017 (minus most prisoner and all Social Security cases that generally do not take time of Article III judges).
MDL cases classified as products liability cases by the Judicial Panel on Multidistrict Litigation (JPML) account for about 90% of all cases in MDLs as of the end of FY 2017, and this pattern has held constant since the transfer of asbestos and silicon breast implant MDLs in 1991 and 1992, respectively.
Products liability cases in MDLs represent 42% of the entire civil caseload as of the end of FY 2017.
MDL cases have more than tripled since the end of FY 1992, increasing by 86,949 cases as of the end of FY 2017. Over this same period, products liability cases in MDLs also have more than tripled, increasing by 76,398 cases. The growth in MDL products liability cases alone accounts for almost 88% of the growth in MDL cases since FY 1992.
The number of MDLS with more than 1,000 pending cases has surged since the early 1990s. As of September 2018, the number of MDLs with more than 1,000 cases has reached an all-time high of 24.

“The data demonstrates the lack of diversity in MDLs, as 90% of the cases pending in MDLs are products liability cases, many of which have large numbers of cases,” said LCJ President Tim Pratt. “It’s no surprise that the parties involved in the MDLs where the FRCP are especially impractical are driving the push for rules changes, but the proposed amendments would benefit all MDLs. Until the FRCP provide consistency and predictability for MDL cases, we face the prospect that almost half of the federal civil docket will be subject to ad hoc and inconsistent procedures that favor repeat players, allow frivolous claims to clog our courts, and push many MDLs to bellwether trials and settlements, and not necessarily justice.”

In addition to its report, LCJ released three new infographics today that depict the growing MDL trends. One infographic, The Myth of MDL Diversity, reveals the concentration of products liability cases in MDLs and counters the argument made by many opponents of rules changes that MDLs are too diverse to be subject to new or expanded rules. A second infographic is titled Meet a Force Behind MDLs: Products Liability Cases, and it shows that products liability cases have become nearly synonymous with MDL cases for over two decades. The third infographic, MDLs with 1,000+ Cases Hit Record High, graphically depicts the growth in large MDLs over more than two decades to an all-time high in September 2018.

LCJ cited a number of areas where the organization believes the FRCP are particularly deficient when it comes to MDLs. These include:

Processes for vetting the merits of claims are unworkable in many MDLs given the numbers of claims. A case in point is the Vioxx MDL where, after settlement, more than 30% of eligible claimants either failed to submit the necessary paperwork, or their submissions were inadequate.
Appellate review is unbalanced and can lead to lengthy and inefficient MDL proceedings before dispositive rulings are reviewed by an appellate court. Because a single dispositive ruling may apply to most, if not all, cases in an MDL, timely appellate review arguably is even more important in these settings than in an individual case and furthers “just, speedy and inexpensive” adjudication.
Third-party litigation funding is not unique to MDLs, but public reports suggest it is increasingly common in these consolidated proceedings. Disclosure of contingent financing would benefit MDLs and the civil justice system overall, in a number of ways including mitigating conflicts and preventing control or influence by non-parties.

Overall, there are six areas in the FRCP that LCJ recommends should be adapted to the practical realities of MDL cases: pleadings, dismissal, joinder, required discovery disclosures, trial, and appellate review.

For more information about LCJ and this important initiative, please visit www.Rules4MDLs.com or contact us at media@rules4mdls.com.

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