MDLs Reach 1 Million Case Milestone 

 LCJ Calls For Fresh Scrutiny of Rules For MDLs 

Screen Shot 2021-03-17 at 1.52.42 PM.png

WASHINGTON, D.C. – March 18, 2021 – New data from the Judicial Panel on Multidistrict Litigation (JPML) and analysis by Lawyers for Civil Justice (LCJ) shows that over 1 million cases have been filed or transferred into Multidistrict Litigations (MDLs) since MDLs were first authorized by Congress in 1968.(1)

This milestone highlights an accelerating growth trend in cases consolidated in MDLs which, in recent years, have made up roughly 50 percent of the entire federal civil docket(2) and have risen to an unprecedented 62.7% of the federal civil docket in the recently released Fiscal Year 2020 data(3). The LCJ analysis reveals that it took 39 years to reach the first 250,000 cases in MDLs, but only seven more years to hit 500,000 cases and just seven more to top one million. Out of the 1 million historical cases, 35.6% of them are currently pending.

Screen Shot 2021-03-17 at 2.39.19 PM.png

“The million-case milestone is a critical warning sign that MDLs play an outsized role in our civil justice system and must be subject to consistent, fair and predictable rules just like all other civil cases,” said Andrea Looney, LCJ’s Executive Director. “Too often, transferee judges improvise practices in MDLs, including failing to dismiss cases not sufficiently supported that would be dismissed in any other non-MDL civil cases.  Now, well over half of the cases in our federal civil justice system operate without clear and uniform rules that apply to all other civil cases.” 

LCJ’s analysis indicates that one of the main drivers of the explosive MDL growth has been the surge in mass tort product liability cases that began in 1991 and 1992 with the consolidation of the asbestos and breast implant litigations, respectively. These two MDLs marked the beginning of the modern MDL era in which product liability cases dominate MDL dockets.  LCJ’s analysis found that the percentage of the MDL caseload represented by product liability cases skyrocketed from 0.7% in 1991 to 93% in 1992 and has remained around 90% ever since, rising to 97.2% in 2020(4).  

LCJ said that weaknesses in the current MDL system may also be drivers of growth in MDL caseloads. The organization noted that the lack of safeguards to screen out meritless claims early in the MDL process may invite larger volumes of claims, as plaintiffs’ counsel and aggregators know they will not be subject to rigorous vetting. LCJ also said the deluge of dark money from third-party funders has led to a surge in recruitment advertising that may be as much as $1 billion annually. Three high-profile litigations in recent years each have involved spending of $100 million or more in television advertising alone(5), driving up the number of claims which are often not subject to any serious vetting. This toxic combination of third-party money and lack of vetting in MDLs is becoming a more serious problem. Recently, these mass torts have begun to expand to household or over-the counter products for which there are no medical or prescription records to document use – including earplugs, weedkillers, e-cigarettes, heartburn, acid reflux treatments, and more. 

Unlike recent inadequate efforts such as the use of plaintiff fact sheets or an early census , LCJ has proposed a change that would require initial disclosure of evidence showing proof of exposure to the alleged cause of harm and resulting injury. This simple change would accomplish efficient, early vetting that strongly discourages the filing of meritless claims without taxing judicial resources or lawyers’ time. It would also make cases more efficient by jump-starting discovery at an earlier stage and freeing judges from dealing with non-meritorious cases. 

“The historical MDL caseload reaching one million cases underscores the urgent need to amend and update the FRCP to address the unique procedural challenges in MDLs,” said Alex Dahl, General Counsel for LCJ. “In light of this milestone, we continue to 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 LCJ’s proposals, which would fill the early vetting gap and fix the appellate review roadblock.” 

For more information on Lawyers for Civil Justice’s proposals to bring fairness, clarity and consistency to all civil cases, please visit Rules4MDLs.com.

(1) The newest MDL Statistics Report released March 15, 2021 from the JPML shows that there are 715,156 cases in currently pending MDLs. These cases, in addition to the 285,010 cases laid out in the FY2020 Cumulative Terminated Report and subsequent monthly MDLs Terminated Reports push the historical MDL caseload over 1 million since the creation of MDLs in 1968. The graph above was generated by compiling the information contained in the JPML’s annual Statistical Analysis of Multidistrict Litigation Report.  

(2) Based on Duke Law Center methodology. Civil cases include all cases minus social security and prisoner cases, except death penalty cases. bit.ly/385I155 bit.ly/2PwmQ61 

(3) Based on Duke Law Center methodology. Civil cases include all cases minus social security and prisoner cases, except death penalty cases. bit.ly/3b8eBoQ bit.ly/2OdYtcs  

(4) The number of pending cases transferred to product liability MDLs divided by the number of total pending MDL cases. Both numbers are as of September 30th and taken from the Judicial Panel on Multidistrict Litigation’s annual Statistical Analysis of Multidistrict Litigation report. bit.ly/3sJbutz bit.ly/383BHLD 

 

(5) https://bit.ly/3e4lfyu 

###