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LCJ Urges Advisory Committee on Civil Rules, MDL Subcommittee to Bring Balance to MDL Proceedings


Submits Proposals to Address the Early Vetting Gap, Appellate Review Roadblock

WASHINGTON, D.C. – September 14, 2020 – Lawyers for Civil Justice (LCJ) this week renewed its call to fix the imbalance in multi-district litigation (MDL) created by the early vetting gap of claims and the appellate review roadblock. In a comment to the Advisory Committee on Civil Rules and the MDL Subcommittee, the organization proposed two amendments to the Federal Rules of Civil Procedure (FRCP) to remedy these deficiencies.

LCJ’s comment reminded the Committee that the Subcommittee’s examination of common MDL practices has exposed two fundamental flaws in the FRCP: A lack of early vetting that allows hundreds of thousands of cases to circumvent procedures that protect dockets and defendants from meritless claims in non-MDL cases; and an appellate review wall that denies MDL participants a fair opportunity to seek finality on potentially case-dispositive rulings.

“We urge the Committee to restore much-needed balance in MDL proceedings and fulfill the FRCP’s promise of providing fair presumptive procedures by moving forward with two proposals that would fill the early vetting gap and fix the appellate review roadblock,” LCJ wrote in its comment to the Committee.

The early vetting gap allows hundreds of thousands of cases to circumvent procedures that protect dockets and defendants from meritless claims in non-MDL cases. Neither plaintiff fact sheets nor the recent “early census” efforts in three MDLs fill this gap nor provides the clarity and uniformity required. As the Subcommittee reported after studying MDL practices for one year on Nov. 1, 2018:

There seems to be fairly widespread agreement among experienced counsel and judges that in many MDL centralizations – perhaps particularly those involving claims about personal injuries resulting from use of pharmaceutical products or medical devices – a significant number of claimants ultimately (often at the settlement stage) turn out to have unsupportable claims, either because the claimant did not use the product involved, or because the claimant had not suffered the adverse consequence in suit, or because the pertinent statute of limitations had run before the claimant filed suit. The reported proportion of claims falling into this category varies; the figure most often used is 20 to 30%, but in some litigations it may be as high as 40% or 50%.

To close the gap, the Multidistrict Initial Limited Disclosure (MILD) proposal would require initial disclosure of evidence showing exposure to the alleged cause of harm and a resulting injury. This modest change to Rule 26(a)(1) would have an outsize effect and would, among other benefits:

  • Accomplish the “early” element of early vetting by establishing a permanent procedure that everyone will know about on day one of every proceeding;

  • Deter the filing of meritless claims by putting counsel on notice that they will have to disclose the basic evidence showing their client was exposed to the product at issue and suffered an injury as a result; and

  • Achieve “vetting” by establishing a straightforward touchstone separating meritless cases which have no place on the federal civil docket from claims that satisfy the bare minimum requirements for proceeding.

LCJ also released a new infographic that demonstrates the imbalance in MDLs when it comes to early vetting. The infographic, “MDL Vetting Rule Needed to Restore Balance,” demonstrates that vetting procedures in individual cases are not available for most defendants in MDLs, and that this lack of availability - combined with common MDL practices - creates an imbalance in MDLs, allowing meritless claims to pile up. A new early vetting rule to screen out meritless claims would bring balance to vetting in MDLs.

In its comment letter, LCJ also urged the Committee to address the appellate review roadblock to MDLs. The constraints of Section 1292(b) may be appropriate for non-MDL cases, but their unduly restrictive limits, especially as courts apply them, creates a barrier in the type of proceedings that need appellate review the most. Decisions on potentially dispositive motions can affect all or most of the cases in an MDL thus affecting hundreds or even tens of thousands of cases.  

Because of the unique dynamics of mass tort MDL proceedings, interlocutory review is typically the only hope for appellate review of potentially case-dispositive rulings. The purposes of interlocutory review in MDLs match the goals of appellate review in conventional cases, but the difference is that the structural features of MDLs create intense and one-sided pressure for settlement before final judgement, which greatly increases the likelihood that district court rulings on key issues will be the final word.

Equally important, interlocutory review is key to ensuring unified treatment of consolidated claims by avoiding duplicative appeals and inconsistent results. The combination of uniquely intense settlement pressure and multi-district dynamics creates serious risk of unjust MDL resolutions.

LCJ believes that there is a simple remedy for the Appellate Review Roadblock and the problems it causes.  The revised rule suggestion, attached as Exhibit B in LCJ’s comment letter, incorporates several features the Subcommittee has found to be important, including: discretionary appeals, district court input (but not a veto) if they choose to provide it, and a limited scope that allows judicial discretion in defining what issues may materially advance the ultimate termination of the proceeding.  This proposal would provide litigants in mass tort MDL proceedings a much-needed and fair opportunity to seek finality on potentially case-dispositive rulings.

The Committee, whose next meeting is October 16, is believed to be close to a decision on whether to draft and seek public input on potential FRCP amendments.


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