Judges Weigh New Rules for Multidistrict Litigation

• Multidistrict litigation (MDL) is a method used to streamline the pre-trial process for suits with common issues of fact that are brought in or removed to different federal district courts around the country. MDLs involve suits against a common defendant or defendants (usually a large, national or international company) and arise from the same issue, such as a mass accident, an allegedly defective product, pharmaceutical drug, or medical device; alleged antitrust violations, securities fraud, or patent infringement; and alleged discriminatory employment practices.

• 28 USC § 1407 codifies the process for MDL assignment, created the Judicial Panel on Multidistrict Litigation, and authorized the panel to determine whether cases should be transferred and/or consolidated for pre-trial purposes to one federal district court judge. In doing so, the panel considers whether the initiation of an MDL proceeding will promote judicial economy by creating a more efficient discovery process, ensuring consistent rulings on the same issue(s), and, where possible, facilitating global settlement.

• The judicial panel consists of seven district court and circuit court judges appointed by the chief justice of the United States Supreme Court.

• Once the judicial panel has determined that the conditions for an MDL are present, it selects the MDL judge, who usually serves in the federal district court where discovery will be most convenient for the parties.

• Generally, MDLs operate outside of the Federal Rules of Civil Procedure. Because the Federal Rules of Civil Procedure do not address MDLs, the MDL judge often creates his or her own procedural plan when handling coordinated cases.

• At the outset of the MDL, the MDL judge will typically appoint plaintiff liaison counsel, who, in addition to representing their own respective clients, will serve as spokespersons for the interests of all plaintiffs in the MDL and coordinate with them, defense counsel, and the court in order to streamline discovery and motion practice. Plaintiff liaison counsel also coordinates with other plaintiff counsel regarding the retention of experts, document review, and the taking of depositions. Plaintiff liaison counsel are typically prominent lawyers with prior experience serving as liaison counsel, but in recent years more judges have been cognizant of the need to ensure that younger and more diverse attorneys are also given an opportunity to hold leadership positions.

• Depending on the complexity of the matter and the number of defendants who will play an active role in the litigation, the MDL judge may also appoint a defendant liaison counsel.

• Following consultation with the plaintiff liaison counsel and defendants, the MDL Judge may opt to set certain cases for bellweather trials in order to enable the parties to gauge the strengths and weaknesses of their respective cases, and where possible, to facilitate a settlement. After the conclusion of pre-trial discovery and motions, the cases are remanded back to the district court in which they were originally filed (unless the case is resolved globally as part of the MDL proceeding).

• The Advisory Committee on Civil Rules formed an MDL Subcommittee in 2017 to address possible additions to the Federal Rules of Civil Procedure regarding multidistrict litigation.

• Proposed Rule 16.1 encourages the transferee judge, upon assignment, to schedule an early management conference as soon as possible to develop a plan for pretrial activity. The proposed rule also encourages the court to appoint a coordinating counsel for plaintiffs and defendants on a temporary basis in order to represent the parties during a pre-management conference "meet and confer" session.  

• The proposed rule also encourages the MDL judge to task the coordinating counsel with the preparation of a report providing the court with the parties' views on issues the court may need to address in early case management orders.

• Defense attorneys argue that Rule 16.1 should be more stringent in weeding out frivolous claims.
  • The Lawyers for Civil Justice (LCJ) say that the proposed rule changes should prompt judges to require a "basic due diligence into plaintiffs' claims, such as evidence of exposure to the alleged cause and a resulting injury" at an early stage in the case. However, the LCJ criticizes the proposed rule to the extent that it could create negative unintended consequences by including provisions which are inconsistent with the Federal Rules of Civil Procedure and the MDL statutory mandate.
  • The Products Liability Advisory Council (PLAC) – whose members include Johnson & Johnson, Google, Novartis Pharmaceuticals, Boeing, Home Depot, Whirpool, Ford, and General Motors – also submitted a comment expressing its support for the proposed rule's addition of an early screening requirement, emphasizing the "critical need for procedural mechanisms requiring early disclosure of information and evidence substantiating individual claims in the MDL setting."

• Plaintiffs' attorneys are generally critical of the proposed rule. Some argue that there is no need for the rule as it is just a promulgation of the existing practice of most MDL judges, and therefore will have no real effect on MDL litigation. Lawyers representing plaintiffs in the hernia mesh MDL proceedings, for example, contend that the enactment of "rigid standards" for the procedural process of MDLs will hinder the "creativity of the judges and parties involved who would otherwise craft orders and procedures that fit for their MDL's unique set of facts and procedural history."

• The independent, nonpartisan, Rabiej Litigation Law Center submitted a comment on the proposed rule change with input from judges and both plaintiff and defense attorneys. In its comment, the center stated that the proposed rule change will reduce the inefficiencies of the current MDL process and reduce the length of time required to adjudicate MDLs. The comment did, however, suggest some changes to the proposed rule. Specifically, the center found the "one-size-fits-all" approach to be unproductive and impractical for most MDLs, and instead argued that MDL judges be granted more discretion in establishing case management plans. 

• Alan B. Morrison and Roger H. Trangsrud, the co-directors of the James F. Humphreys Complex Litigation Center, George Washington University Law School, suggested that the proposed rule change should include an initial management conference to ensure that all lawyers have an input in what is presented to the MDL judge, as opposed to a handful of experienced MDL attorneys who may attempt to present their preferred procedure to the MDL Judge.

• The rule won’t take effect for some time. While the public comment period began in late March 2023, the soonest the rule could take effect is 2025, after being considered by the Judicial Conference of the United States and the U.S. Supreme Court.