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The Unintended Consequences of Inconsistent and Unclear Rules for MDLs

By Alex Dahl on July 31, 2018

In the last 15 years, the percentage of federal civil cases concentrated in Multidistrict Litigation (MDL) has nearly tripled. In 2002, MDLs comprised 16% of the federal civil caseload, which grew to 46.7% in 2017.


This growth in MDL size (as percent of the federal civil caseload) is concerning as the Federal Rules of Civil Procedure (FRCP) -- which govern all civil actions and proceedings in U.S. district courts -- were not designed for the large number of parties that exist in many MDLs today.


Certain aspects of the FRCP are difficult or even impossible to apply to MDLs, notably the rules testing the sufficiency of claims including rules 8, 9, 11, 12(b) and 56. Judges resort to improvising ad hoc practices instead of these rules. As a result, there is no practical and consistent standard or procedure for verifying plaintiffs’ claims and dismissing the ones that lack merit – an omission that has significant consequence. For instance, in the Vioxx MDL, more than 30% of the claims did not qualify for processing after settlement was reached, because plaintiffs either didn’t have a basis for their claim or didn’t produce the most basic documentation.  


Given the complex nature of MDLs, it is not uncommon for judges who have prior experience with MDLs to be assigned subsequent MDLs. This means that a small percentage of federal judges oversee a significant portion of the federal civil caseload. As of the end of the last fiscal year, 40% of cases were overseen by 2% of federal judges – that’s 107,045 cases in the 18 largest MDLs managed by 15 (out of 667) federal district court judges.


Research shows that the same handful of lawyers is involved in many MDL proceedings, a problem rooted in the FRCP’s failure to prescribe transparent and generally accessible procedures. This “repeat player” problem — which has led to a call for greater inclusion in MDL leadership by women, minorities and other new entrants — exists because only a small, exclusive group of people is allowed to learn how the game is played.


One legal scholar argues that “[b]ecause hard-and-fast formal rules are scarce when multidistrict litigation is not certified as a class action, transferee judges tend to seek guidance from predecessors, peers, and lawyers who have litigated other multidistrict proceedings.”


Thus, the failure of the FRCP to account for the unique challenges of MDLs with substantial numbers of cases fosters an unintended consequence: An exclusive group of attorneys with MDL experience, one that is difficult for newcomers to penetrate (on the plaintiff side). The same shortcomings encourage judges to create their own practices –with mixed results at best. The FRCP can help solve the repeat-player problem and bring uniformity to MDLs by providing clear and accessible procedures that judges and lawyers can look up, read and learn for themselves.

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