New Data from LCJ Reveals Products Liability Cases Make Up 90% of All MDL Cases
By Alex Dahl on October 16, 2018
This is likely an obvious statement, but we at Lawyers for Civil Justice (LCJ) take the law and legal procedure very seriously. But we also see the incredible value hard data has in informing and reinforcing important legal concepts.
Last week, we released a new data analysis that revealed products liability cases dominate multidistrict litigation (MDL), accounting for about 90% of all pending MDL cases as of the end of fiscal year 2017. This percentage has held firm for over two decades, while the number of cases pending in MDLs has also increased more than 230%. In addition, the number of large MDLs has surged, a clear indication that products liability cases are driving MDL growth.
Moreover, our analysis finds that MDL products liability cases make up 42% of the entire civil caseload as of the end of fiscal year 2017. This data shows that there is clearly a need for updates to the Federal Rules of Civil Procedure (FRCP) to ensure the Rules apply to all federal civil cases, which is the stated purpose of the FRCP.
The timing of this data could not be more fortuitous, as a special subcommittee of the Advisory Committee on Civil Rules is evaluating whether just such updates should be made to the FRCP. LCJ and others argue that many of the present civil rules were not designed for MDLs and don’t work 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. This uniformity is desperately needed as the number of cases in MDLs are rising, in part fueled by the growing and still largely secret third-party litigation funding industry.
Some highlights from LCJ’s new analysis:
MDL cases represent 47% of the entire civil caseload as of the end of FY 2017 (minus most prisoner and all Social Security cases that generally do not take time of Article III judges).
MDL cases classified as products liability cases by the Judicial Panel on Multidistrict Litigation (JPML) account for about 90% of all cases in MDLs as of the end of FY 2017, and this pattern has held constant since the transfer of asbestos and silicon breast implant MDLs in 1991 and 1992, respectively.
Products liability cases in MDLs represent 42% of the entire civil caseload as of the end of FY 2017.
MDL cases have more than tripled since the end of FY 1992, increasing by 86,949 cases as of the end of FY 2017. Over this same period, products liability cases in MDLs also have more than tripled, increasing by 76,398 cases. The growth in MDL products liability cases alone accounts for almost 88% of the growth in MDL cases since FY 1992.
The number of MDLS with more than 1,000 pending cases has surged since the early 1990s. As of September 2018, the number of MDLs with more than 1,000 cases has reached an all-time high of 24.
Overall, there are five areas in the FRCP that LCJ recommends should be adapted to the practical realities of MDL cases: initial disclosures, interlocutory review, bellwether trials, pleadings and , joinder. In addition, we urge a disclosure requirement for all cases (not just MDLs) in which a non-party has a right to compensation that is contingent on, and sourced from, any proceeds of the suit. Such changes would ensure that consistent procedures are applied to all federal civil cases.