Lawsuit Information Center
Seventy percent of civil cases in federal court are in an MDL in 2024. Yet few people understand what an MDL is.
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.
However, typically, after a few bellwether trials of individual plaintiffs, the cases are sent back to their local jurisdiction for trial if a settlement is 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 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 multidistrict litigation 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 total 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:
- whether there are common questions of fact;
- whether the transfer is convenient for the parties; and
- 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?
How long MDL cases take 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:
- 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.
- 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. But small numbers can go both ways. Sometimes the smaller MDL’s move at a snail’s pace.
- 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 out the MDL settlement process as long as they can.
- 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.
- 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 2024?
These are active MDLs for which our lawyers are taking cases:
| Roundup | N.D. Cal. | 16-md-2741 |
| Talcum Powder | D. New Jersey | 3:16-md-02738 |
| Paraquat | S.D. Illinois | 3:21-md-3004 |
| AFFF | D. South Carolina | 2:18-mn-2873 |
| Ozempic | E.D. Pa. | 2:24-md-03094 |
| CPAP | W.D. Pennsylvania | 2:21-mc-1230 |
| Paragard IUD | N.D. Georgia | 1:20-md-2974 |
| 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 |
| Social Media Addiction | N.D. Cal. | 4:22-md-03047 |
| Suboxone Tooth Decay | N.D. Ohio | 1:24-md-03092 |
Biggest MDLs in 2024
| Type | Number of Active Cases | July 2024 Status of Litigation |
|---|---|---|
| 3M Combat Arms Earplug | 247,640 | $6 billion settlement; payments have begun for some, more payouts in July |
| Johnson & Johnson Talcum Powder Products | 57,365 | MDL settlement negotiations but no deal quite yet – vote on settlement at end of July – average case settlement will be somewhere between $100,000 and $200,000 |
| Davol, Inc./C.R. Bard Hernia Mesh | 22,896 | MDL settlement negotiations have either already yielded a deal in principle or a settlement is forthcoming soon (depending on who you talk to) – average settlements for like in the range of $65,000 |
| Zantac (Ranitidine) | 14,401 | MDL cases dismissed pending appeal; big settlement in state court cases in April 2024; 75,000 cases going forward in Delaware |
| Proton-Pump Inhibitor | 12,769 | settlement is lurking |
| Taxotere (Docetaxel) | 9,496 | litigation is going poorly for plaintiffs – another Taxotere MDL for watery eyes has strong claims |
| Hair Relaxer | 8,170 | pretrial discovery phase, a lot of strong cases for plaintiffs, trials nex year |
| Cook Medical IVC Filters | 7,717 | MDL settlement is lurking, really drawn out litigation |
| Aqueous Film-Forming Foams (AFFF) | 8,270 | settlement expected in 2024/early 2025, very strong cases for plaintiffs |
| Bair Hugger | 6,858 | settlement efforts, not strong cases for plaintiffs, trials set for 2025 |
| Paraquat | 5,680 | first trial should be in 2025, strong cases with awful injury, more cases are being filed in state court, these cases could average $500,000 |
| Juul Labs | 5,100 | settled |
| Roundup | 4,285 | focus of this litigation has turned to state court but still more MDL trials expected |
| National Prescription Opiate Litigation | 3,056 | mostly settled |
| Atrium Medical Corp. C-Qur Mesh | 1,904 | smaller hernia mesh litigation that should settle in 2024 |
| Paragard IUD Products Liability | 2,690 | not large cases but strong liability case for plaintiffs; trials in 2025 |
| Elmiron | 1,750 | these cases are settled or in the process of settling |
| Exactech | 1,540 | strong cases that may settle this year or next, there are some issues with the amount of insurance and size of the company that will depress settlements a bit |
| Valsartan, Losartan, and Irbesartan | 1,248 | Some of these cases have settled with one defendant more should settle by 2025 |
Soon To Be MDLs in 2025
There are a few relatively new mass torts that will almost certainly be consolidated into new MDLs at some point in 2025. These “soon-to-be” MDLs to look for in 2025 are:
Oxbryta Lawsuits: Oxbryta is a new drug released in 2019 for the treatment of sickle cell disease. Oxbryta was recalled in September 2024 due to safety concerns after evidence revealed that it actually increased the risk of death and other symptoms of sickle cell.
BioZorb Implant Lawsuits: BioZorb is a implant used as a tissue marker in lumpectomy procedures for breast cancer. Defects in the BioZorb have led to various health complications including infections, implant migration, and more.
What Is a Registry in an MDL?
In the context of multidistrict litigation (MDL), a registry serves as a centralized system for collecting and managing information about potential claimants and their claims. This registry aims to streamline the administration of the MDL, facilitate communication among parties, and assist the court in efficiently managing the litigation process.
By centralizing information collection, the registry gathers detailed data on each claimant, including personal details, medical history, the nature of their claims, and supporting evidence. This ensures that all relevant information is available in one place for easy access and analysis.
A registry in an MDL serves several critical functions that can significantly impact the management and potential outcome of their case. Plaintiffs may choose to register their claims without immediately filing a formal lawsuit. This can be advantageous for those who want to ensure their claims are documented and included in the MDL without the immediate costs and procedural steps associated with filing a lawsuit.
One of the key benefits of registering a claim in an MDL registry is the potential tolling of the statute of limitations. This means that by registering their claims, plaintiffs may be protected from the statute of limitations expiring while the MDL proceedings are ongoing. This protection is crucial for plaintiffs who might otherwise risk their claims being barred due to the passage of time. The registry essentially preserves their right to seek legal recourse while the broader litigation process unfolds.
Additionally, registering a claim allows plaintiffs to stay informed about the progress of the MDL and any potential settlements or resolutions. It provides a structured way for plaintiffs to be part of a collective effort, often leading to more efficient case management and potentially more favorable outcomes than pursuing individual lawsuits.
For plaintiffs, participating in an MDL registry means they are part of a coordinated effort that can leverage the collective strength of numerous similar claims, enhancing their chances of a successful resolution. While it does not eliminate the need to eventually provide detailed information and possibly engage in legal proceedings, the registry offers a streamlined and protective initial step in the complex landscape of multidistrict litigation.
Have Any Significant Changes Occurred with How MDLs Are Run?
In 2024, by the Judicial Conference’s Advisory Committee on Civil Rules approved first formal rule designed to enhance the efficiency and fairness of MDL proceedings.
This rule, identified as Rule 16.1, has been in development since 2017 and is the outcome of extensive deliberation, including a robust period of public comment last year. The rule, which aims to manage the increasing volume of complex cases often related to prescription drugs, medical devices, and data breaches, among others, now awaits further endorsements before its finalization.
The approval of Rule 16.1 marks a significant advancement for the legal community, balancing the diverse interests and concerns of defense and plaintiffs’ lawyers. It includes mechanisms to address the challenge of meritless claims within MDLs while maintaining judicial flexibility. Despite some disagreements on the necessity of mandating specific procedural actions, the rule ultimately aims to reinforce existing pleading standards and encourage early identification of insufficient claims. Many judges, notably in the Paraquat litigation in 2024, have taken on this issue even with a rule. I have been saying for years this is the best thing for everyone, especially plaintiffs with strong claims.
This rule also notably omitted the previously contentious proposal of “coordinating counsel,” a decision applauded by plaintiffs’ representatives who argued that such a role could bias proceedings. Instead, Rule 16.1 emphasizes collaborative efforts among litigants to streamline MDL management, a move that has been generally well-received.
The rule has not been officially adopted but that is likely just a rubber stamp after the Judicial Conference’s Advisory Committee on Civil Rules has signed off.