LCJ Welcomes Publication of Draft FRCP Rule 16.1
Urges Improvements as Rule Moves Through Public Comment Period
WASHINGTON, D.C. – June 6, 2023 – Lawyers for Civil Justice (LCJ) welcomes today’s decision to publish the first MDL-focused draft Federal Rule of Civil Procedure (FRCP) for public comment by the Judicial Conference’s Standing Committee on Rules of Practice and Procedure. The draft Rule 16.1 rule seeks to address the need for rules-based practices and procedures applicable to multidistrict litigations (MDLs) where many of the existing rules that apply to all other federal civil cases are commonly bypassed. MDLs have ballooned since they were established by Congress in 1968 to promote greater efficiency. As of the end of fiscal year 2022, MDLs accounted for 73% of the total federal civil caseload. While the Standing Committee’s proposed rule acknowledges the important need for rules applicable to MDLs, LCJ believes that the rule and accompanying official note require improvement over the course of the public comment process.
The draft rule aims to identify and address important MDL issues that courts and parties should consider at early management conferences. The most important need for the proposed rule is to help judges avoid the well-known problems that unexamined claims cause throughout MDL proceedings. The draft rule could do this by prompting early decisions requiring disclosure of evidence supporting the factual basis for claims. LCJ believes that the note accompanying this rule should explain that such a process is needed due to the significant number of unsupportable claims that populate many MDLs. As the Advisory Committee on Civil Rules wrote in a previous Agenda Book: “[T]he source of these problems might be called the ‘Field of Dreams’ problem, or ‘If you build it, they will come.’ The unfortunate reality that confronts experienced lawyers in MDL proceedings is that a significant number of claimants in those proceedings turn out not to have supportable claims.” This proposed rule, with further refinement, could help address this problem.
The problem of unsupportable claims are not merely anecdotal. For example, data from BrownGreer, PLC, the claims administrators overseeing the settlement of the Vioxx MDL, revealed that nearly a third of all settlement claimants who filed claims were unable to demonstrate the basic facts necessary to recover from the settlement.
“We welcome the publication of Rule 16.1 for public comment and are pleased that the Standing Committee acknowledges the need for rules of civil procedure that would apply to MDLs, which now dominate the federal civil docket,” said Dan Steen, Executive Director of Lawyers for Civil Justice. “That said, we believe the draft rule should be improved so that it helps courts and the parties ensure that claimants actually belong in the MDL based on their alleged injuries and the products they claim caused them.”
“The lack of an early process to assess whether claims belong in the MDL causes a litany of problems for courts and the parties involved. Unexamined claims complicate the bellwether selection process, complicates settlement discussions, and adds complexity to working up and remanding cases,” said Alex Dahl, General Counsel, Lawyers for Civil Justice. “MDL procedures need to be written down so judges, lawyers, and parties understand them, and this proposed rule is a significant step forward.”
One of the key improvements for which LCJ advocates is a more explicit note accompanying section(c)(4) of the proposed rule, which suggests disclosure of information about claims. In cases outside of MDLs, the Federal Rules of Civil Procedure are generally effective in preventing the filing of meritless claims. But that is not the case in many MDLs, where the regular rules may not be applied and courts permit procedures, such as the filing of “short form complaints” that encourage high-volume filings. This new rule and accompanying note should define when and how key information is disclosed to ensure that individual cases belong in the MDL.
LCJ also remains concerned that as-written, the proposed rule would risk violating the Committee’s principle of doing no harm with the promulgation of new rules. The principle prevents the committee from rolling out new rules which could conflict with existing FRCP language, are complex or disputed, involve waiver of significant rights, or are contrary to MDL statute. Several provisions of the proposed rule could violate that principle.
Previously, on March 28, the Advisory Committee on Civil Rules voted to recommend the proposed rule be published for public comment. The Standing Committee on Rules of Practice and Procedure’s approval means the proposed rule will be published in August for a six-month public comment period.
For more information on Lawyers for Civil Justice’s efforts to bring fairness, clarity and consistency to procedures in all civil cases, please visit Rules4MDLs.com.
Rules4MDLs is sponsored by Lawyers for Civil Justice, a national coalition of defense trial lawyer organizations, law firms, and corporations that promotes excellence and fairness in the civil justice system to secure the just, speedy, and inexpensive determination of civil cases.