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Six Reasons Why the FRCP Need to be Amended to Ensure They Cover All Cases, Including Those in MDLs

By Alex Dahl on June 29, 2018

More than 80 years ago, the United States Supreme Court adopted the Federal Rules of Civil Procedure (FRCP), with the purpose and intent of ensuring “the just, speedy, and inexpensive determination of every action and proceeding.” The Rules govern court procedure for civil cases and have been amended over time. 


While the Rules are intended to guide all civil procedures, certain aspects of the FRCP are difficult – or even impossible – to apply to Multidistrict Litigation (MDLs) because of their numerosity. MDLs are a special procedure, established by Congress in 1968, for cases that share some common issues of fact, which are consolidated before one federal judge for the purpose of coordinating discovery and other pre-trial proceedings. MDLs differ from class action lawsuits in that all the cases remain separate cases and ultimately are adjudicated individually pursuant to rulings established by the MDL court. 


MDLs are intended to streamline case management and avoid duplicative efforts by having one federal court handle all pre-trial matters. However, the fact that MDLs can have hundreds or even tens of thousands of individual claims, makes certain aspects of the FRCP difficult or even impossible to apply. As a result, judges improvise ad hoc practices to address procedures such as discovery in an MDL with a large number of cases. Although some of these ad hoc practices have more merit than others, they all share the same lack of clarity, uniformity and predictability that the FRCP ensure in all other civil cases. Moreover, the lack of consistent and effective procedures leads to problems like the significant number of frivolous claims that populate some MDLs. In the Vioxx MDL, for example, more than 30 percent of the claims failed at the end of the process after the litigation was settled. All of this is cause for attention, as MDL cases now constitute 46.7% of the pending federal civil caseload, up from just 16 percent 15 years earlier. (This data point excludes prisoner cases -- except for death penalty cases -- and Social Security cases.) ​


There are six areas where Lawyers for Civil Justice proposes amendments to the FRCP: discovery, appellate review, bellwether trials, dismissal, joinder, and pleadings. 


Discovery, Rule 26: The fact is that FRCP’s discovery rules, which contemplate requests, motions and protective orders, can be unworkable in an MDL proceeding with hundreds, much less thousands, of plaintiffs. The failure of current discovery rules in MDLs should not mean there are no rules for addressing the merits of claims, or that presiding judges should be free to invent new and widely varying procedures. Many MDL cases are also strongly influenced by non-parties that are largely unknown to courts, including third-party litigation financiers. These concerns can be alleviated by requiring plaintiffs to disclose significant evidence supporting their claims early in the proceeding, disclosure of third-party finance arrangements, and disclosure of the use of lead generators and aggregators.


Appellate review: Appeals are fundamental to the American judicial system, but there is no automatic right to appeal rulings on the motions that can be case-dispositive in MDLs, including Daubert and preemption motions. Appellate review and guidance is critical because a single ruling can make or break thousands of cases. The FRCP should be updated to provide a simple and direct pathway for Appellate Review of orders granting or denying the critical rulings in MDL cases.


Bellwether trial: Establish a confidential consent procedure that must be followed if bellwether trials are to occur, to ensure parties are not unduly pressured to participate in test trials that are not representative of the issues in the MDL as a whole.


Dismissal: Current mechanisms are insufficient for testing merits of claims in MDL cases, so the FRCP should be updated to require individual complaints in consolidated cases to be pled with particularity. Alternatively, Rule 12(b) should be amended to allow dismissal of individual complaints that are unsupported by meaningful evidence.


Joinder: A party initiating a lawsuit must pay a filing fee to cover the administrative costs of processing and assigning the claim. It has become common practice in MDL cases, however, for plaintiffs’ counsel to circumvent the rule by filing a single complaint on behalf of many plaintiffs, depriving courts of important fee revenue and creating a loophole allowing claims that fail to meet pleading standards. This practice can be halted by prohibiting joinder of parties who fail to comply with filing requirements or over whose claims the transferee court lack jurisdiction. 


Pleadings: Master complaints are an invention driven by the need for efficiency inherent in MDL cases, so the FRCP should acknowledge MDL pleading practices by including “Master Complaints” and “Individual Complaints” as pleadings.

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