MDL Cases Surge to Majority of Entire Federal Civil Caseload
“Majority MDL” Civil Caseload Intensifies Need to Update the Federal Rules of Civil Procedure (FRCP) To Cover All Cases
WASHINGTON, D.C. – March 14, 2019 – Lawyers for Civil Justice (LCJ), a national coalition of defense trial lawyer organizations, law firms, and corporations, today revealed that multidistrict litigation (MDLs) now account for more than half of the federal civil caseload for the first time, comprising 52% of all pending civil cases as of the end of fiscal year 2018. A year ago, civil cases concentrated in MDLs made up 47% of the entire federal civil caseload. The change to majority MDL continues a trend of growing concentration of the federal civil caseload in MDLs which dates back to the early 1990s.
LCJ also found that the largest MDLs comprise an even bigger share of the civil caseload than in past years. At the end of fiscal year 2018, cases in large MDLs with 1,000 or more cases represented 46% of cases in the federal civil court system, compared to 40% at the end of fiscal year 2017, according to calculations based on data from the Judicial Panel on Multidistrict Litigation (JPML) and United States Courts. The 140,052 cases pending in 24 large MDLs represented 89% of all the cases across 248 MDL dockets at the end of fiscal year 2018. LCJ’s civil caseload calculation follows the Duke Law Center methodology established in 2014, which excludes all Social Security cases and prisoner cases, except death penalty cases, that generally do not take the time of Article III judges.
The federal civil docket’s transition to majority MDL comes at a time is when the Advisory Committee on Civil Rules is evaluating whether the Federal Rules of Civil Procedure 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 not designed for MDLs and don’t practically apply 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.
“The fact that the federal judiciary is now majority MDL underscores the urgency of amending the FRCP,” said LCJ Executive Director Andrea B. Looney. “When MDLs were created in 1968, nobody could have predicted that half a century later they would dominate our federal civil docket. The civil rules and procedures weren’t created with MDLs in mind so it’s natural that updates are necessary for the modern day. Now that MDLs make up most of the civil caseload, we are clearly at a stage where addressing the needs of MDLs must be a major priority. Importantly, amendments to the rules would benefit all cases, not just MDLs. The alternative is unfairness and unpredictability in over half of the civil justice system.”
LCJ also released two new infographics today, MDL Cases Surge to Majority of Entire Federal Civil Caseload and The Federal Civil Caseload is Now Majority MDL Where the FRCP Are Not Designed to Apply. The infographics depict the increase in concentration of cases in MDLs and show that the percentage of federal civil cases in MDLs has more than tripled since 2002.
LCJ cites a number of areas where 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.
Appellate review is very rare and unbalanced, which can lead to needlessly lengthy and inefficient MDL proceedings. 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.