MDL Cases Continue to Dominate the Federal Caseload
Five-Year Trend in MDL Civil Caseload Underscores Need to Update Federal Rules of Civil Procedure
WASHINGTON, D.C. – March 19, 2020 – Lawyers for Civil Justice (LCJ), a national coalition of defense trial lawyer organizations, law firms, and corporations, today released its analysis of newly published data from the Judicial Panel on Multidistrict Litigation (JPML) and United States Courts, that found the concentration of federal civil cases in multidistrict litigation (MDLs) continues a five-year trend, hovering at nearly half of the total federal civil caseload when adjusted for social security and non-death penalty prisoner cases. As of the end of fiscal year 2019, 20 new MDLs had been created and MDLs overall accounted for 46.7% of all pending civil cases.
Moreover, in fiscal year 2019, MDL cases made up more than a majority of the civil caseload in three U.S. circuits: the 3rd Circuit (65.8%), 5th Circuit (71.3%), and 7th Circuit (50.7%)—and over one-third in four other Circuits: the 1st Circuit (37.6%), 6th Circuit (40%), 9th Circuit (37.3%), and 11th Circuit (33.7%).
MDLs remain highly concentrated: the latest federal courts data shows that the 22 largest MDLs contain 90.2% of all MDL cases – 121,295 cases. There were 194 pending MDL dockets at the end of fiscal 2019; thus, 11% of MDLs contain more than 90% of all MDL cases.
The sustained high numbers of MDL cases and MDL concentration come at a time when the Advisory Committee on Civil Rules is evaluating whether the Federal Rules of Civil Procedure (FRCP) should be updated to ensure that they achieve their stated purpose of applying to all federal civil cases. According to Rule 1, the FRCP “govern the procedure in all civil actions and proceedings in the United States district courts.” It is widely known, however, that the FRCP do not govern key elements of procedure in many MDL cases. The reason is straightforward: some FRCP are failing to provide practical presumptive procedures in MDL cases, so judges and parties are improvising. LCJ and others argue that, to the extent that the present civil rules were not designed for MDLs and do not practically apply in these proceedings, the FRCP should be amended to provide the same clarity, uniformity, and predictability that the rules provide for all other civil cases.
“For more than half a decade now, nearly half of all federal civil cases have been concentrated in MDLs, underscoring the urgent need to amend and update the FRCP to address the unique procedural challenges in MDLs,” said LCJ Executive Director Andrea B. Looney. “In particular, the FRCP need to be amended to provide a practical pathway for interlocutory appeal of potentially dispositive pretrial motions and the need for early vetting to address the high numbers of meritless claims that have become a hallmark of certain MDLs. Allowing continued inconsistency and unpredictability in nearly half of the civil justice system is simply contrary to the FRCP’s goal of the just, speedy and inexpensive determination of every action.’”
LCJ also released two new infographics today, MDL Cases Continue to Dominate the Federal Civil Caseload and MDL Cases Make Up A Majority of The Civil Caseload In Three Regional Circuits. The infographics depict the increase in concentration of cases in MDLs and show that the percentage of federal civil cases has remained around 50% for the last five years.
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 Civil Rules Committee’s next meeting is April 1.