What is an MDL Class Action?

Multidistrict litigation, called an MDL, is a special legal procedure used in mass tort cases to streamline the handling of large and complex cases.  An MDL is a “sort of” class action lawsuit.  It is a class action in that the cases are all brought together under one judge for pretrial discovery.  But typically after a few bellwether trials of individual plaintiffs, the cases are sent back to their local jurisdiction for trial if a settlement if not reached.  The hope of the MDL process is that the parties can figure out the value of the claims so a global settlement can be reached with most of the plaintiffs.

The idea of an MDL was actually was born in 1968 when lawmakers created the MDL system as a way to speed up and coordinate complex litigation that was filed in multiple federal judicial districts. MDLs are utilized in scenarios where a single defendant or group of defendants commit a single tort or does a single act that affects a large group of people. When all of those individual people then go to sue the defendant, it makes more sense to consolidate their cases. This streamlines the process and avoids different rulings regarding similar aspects of the case.

How Do You Start an MDL?

Starting an MDL requires a structured approach to consolidate related lawsuits from different federal districts into one unified district. The first step is recognizing a commonality. There should be a substantial number of civil lawsuits distributed across various federal districts that share one or more factual issues.  You cannot get an MDL if you do not have enough lawsuits to justify one.  The judges will look to how many lawsuits have been filed and how many they expect will get filed.

Following this, involved parties from any of these identified cases, be it plaintiffs or defendants, must petition the Judicial Panel on Multidistrict Litigation (JPML). This panel, comprising seven federal judges, evaluates whether cases should be centralized for pre-trial proceedings to promote efficiency.

Once a petition is filed, the JPML will schedule a hearing where attorneys from both sides can present arguments either in favor of or against the consolidation. After considering these arguments and assessing the convenience and efficiency factors, the JPML decides whether to centralize the cases and, if so, in which federal district the cases will be consolidated.

The selected district will handle all the pre-trial proceedings, such as discovery. It’s important to note that each lawsuit within the MDL retains its individuality. If any case within the MDL doesn’t settle or resolve during the pre-trial proceedings, it can be sent back to its original court for trial.

MDLs Make Discovery Easier For Everyone

Discovery is the most expensive aspect of litigation. In an MDL, discovery between the plaintiffs is consolidated, meaning the parties will avoid having to discover the same documents and information over and over again. Plus, being lawyers, disputes tend to arise during discovery. In an MDL, one judge can make rulings on those discovery disputes, which prevents the various parties from dealing with different judgments from different courts.

Think about it.  If you have 2,000 cases and you are deposing the same key witness in every case, the cost the litigation becomes prohibitive for the plaintiffs and the defendants.  But the plaintiffs are the ones that really suffer.  Because lawyers will not take cases that have a settlement value of $500,000, for example, if the cost to prepare the case is half of that amount. So defense lawyers usually will pay more to defend the case because they want the plaintiffs to pay more to bring the cases.  It is a crazy psychology. But you see drug and medical device companies consistently trying to stall the inevitable by fighting MDLs in the early stages of litigation.

Pros and Cons of MDL

Of course, there are pros and cons for both sides when consolidating proceedings as an MDL for both sides.  Again, for most defendants, it is usually less expensive to litigate issues before one court instead of many. Plus, their witnesses do not have to be deposed multiple times, something defendants hate due to concerns of inconsistency in their testimony.  If you testify 100 times, you are bound to contradict yourself no matter how honest you are.

But defendants will still fight MDL consolidation.  Another important reason defendants will resist is that the publicity surrounding an MDL can often attract more plaintiffs to a lawsuit, which only inflates the price tag of a final settlement or judgment.

For plaintiffs, the main benefit is the fact that plaintiffs’ lawyers can pool their resources, increasing their efforts and the amount of manpower they have behind a lawsuit. When taking on a big company, resources are everything. They have millions to throw at litigation, so an MDL helps level the playing field.

How Do MDLs Happen?

You cannot just get a bunch of plaintiffs together and form an MDL.  It has to be certified by a panel of federal judges. The United States Judicial Panel on Multidistrict Litigation is tasked with doing just that. The seven-member panel is actually appointed by the Chief Justice of the United States Supreme Court. The MDL Panel looks at three key factors:

  1. whether there are common questions of fact;
  2. whether the transfer is convenient for the parties; and
  3. whether the transfer will promote judicial efficiency, economy, and fairness.

So when plaintiffs bring a series of cases before the panel, its members decide whether the cases are worth consolidation. This also entails figuring out how similar the issues are and the logistics of actually bringing the cases in front of one court. If the panel determines that the cases should be centralized, they are set before a single federal district judge. This judge then handles all pretrial motions, discovery matters, and settlement conferences. They ultimately have the power to dismiss cases and decide which ones go forward.

Another goal of the MDL system is to facilitate settlements. The parties or the court will select a few cases to go forward as bellwether trials, which are essentially test cases to see how the juries react to certain aspects of the case. Depending on how these go, the parties may be more encouraged to reach a settlement, which would dispose of the litigation altogether. Unlike a class action, which involves one trial for all the plaintiffs, in the event that an MDL case is not settled or disposed of, it is sent back to its original court, where a trial will take place.

MDLs are incredibly common among pharmaceutical and product liability cases.

How Long Does an MDL Last?

The duration of a Multidistrict Litigation (MDL) can vary widely based on the complexity of the cases, the number of cases involved, and various legal and logistical factors. Here are some considerations:

  1. Complexity and Nature of the Cases: MDLs involving intricate scientific matters, such as those related to pharmaceuticals or medical devices, might require extensive expert testimonies, research, and evidence gathering. These can be time-consuming and it is grind to get through pretrial discovery to get a trial date.
  2. Number of Lawsuits Involved: Some MDLs involve just a few related cases, while others might encompass thousands of individual lawsuits. The more cases there are, the longer it might take to process pre-trial proceedings and reach settlements or other resolutions.
  3. Settlement Negotiations: MDLs often lead to settlements. The willingness of parties to negotiate and reach a settlement can influence the MDL’s duration. Some parties might be keen to settle quickly, while others might take a more prolonged litigation approach. What is more common?  Defendants try to drag these cases out as long as they can.
  4. Daubert Challenges:  A Daubert challenge is a legal objection raised before or during a trial, where one party questions the admissibility of expert witness testimony based on the methods or principles that underlie the expert’s opinions. Originating from the U.S. Supreme Court case “Daubert v. Merrell Dow Pharmaceuticals, Inc.,” this challenge requires the trial judge to act as a gatekeeper, ensuring that the expert’s testimony is both relevant and based on scientifically valid reasoning and methodologies before it can be presented to the jury. This is often the biggest hoop plaintiffs have to jump through to get to a settlement.
  5. Trial of Bellwether Cases: In some MDLs, a set of “bellwether” cases are chosen for trial. These cases are representative of the larger group and are used to gauge potential outcomes in other cases. The results can guide settlement negotiations for the remaining cases. The trial process for these bellwether cases, including any appeals that may follow, can add to the timeline. But, ultimately, trial dates lead to settlements.

On average, many MDLs can last several years. Some might resolve in just a few years, while others, especially those of higher complexity or with significant numbers of cases, can extend for a decade or more. It’s also worth noting that even after the MDL process concludes, individual cases that didn’t settle might continue in their original jurisdictions, adding to the overall timeline.

How Does a Bellwether Trial Work?

A bellwether trial is a foundational component of the MDL  process, particularly when dealing with a large number of plaintiffs and similar claims.

The term “bellwether” is derived from the practice of placing a bell around the neck of a castrated ram (a wether) leading its flock of sheep. Similarly, in the legal context, a bellwether trial serves as a leading case that can guide litigation strategies and settlement talks for other cases in the MDL. It’s intended to test the waters, providing parties with insight into how juries might respond to evidence and arguments in subsequent trials.

Out of the multitude of cases under an MDL, a small group is chosen for the bellwether trial process. The selection is typically a collaborative effort between the presiding judge, plaintiffs’ attorneys, and defendants’ attorneys. The aim is to pick cases that are representative of the broader pool of lawsuits.

The selected bellwether cases proceed to trial. As with any trial, evidence is presented, witnesses are called, and arguments are made by both sides. The outcomes of these bellwether trials are carefully watched by all involved parties. While the verdicts in these trials don’t have a direct legal effect on other lawsuits within the MDL, they play a significant role in shaping the course of the litigation because they tell the parties how juries will interpret the facts and evidence.

What MDLs Are in Play in 2023?

Roundup N.D. Cal. 16-md-2741
Talcum Powder D. New Jersey 3:16-md-02738
Paraquat S.D. Illinois 3:21-md-3004
3M Earplugs N.D. Florida 3:19-md-2885
AFFF D. South Carolina 2:18-mn-2873
Zantac S.D. Florida 20-md-2924
Elmiron D. New Jersey 2:20-md-2973
CPAP W.D. Pennsylvania 2:21-mc-1230
Paragard IUD N.D. Georgia 1:20-md-2974
Acetaminophen SDNY 1:22-md-03043
Gardasil W.D. North Carolina 3:22-md-03036
Exactech E.D. New York 1:22-md-03044
Hair Relaxer N.D. Illinois 1:23-cv-00818
NEC Formula N.D. Illinois 1:22-cv-00071
Hernia Mesh (Bard) S.D. Ohio 2:18-md-2846
Camp Lejeune E.D. North Carolina 7:23-cv-00897
Tepezza N.D. Illinois 1:23-cv-03568
Bard PowerPort D. Arizona 2:23-md-03081


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