What is an MDL Class Action?

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:

  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?

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:

  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 out the MDL settlement process 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 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 Lawsuits March 2024 Status of Litigation
3M Combat Arms Earplug 276,568 $6 billion settlement; payments have begun for some
Johnson & Johnson Talcum Powder Products 53,796 MDL settlement negotiations but no deal – average case settlement will be somewhere between $100,000 and $200,000
Davol, Inc./C.R. Bard Hernia Mesh 21,262 MDL settlement negotiations in mid-March – all is quite on the settlement front but rumor are swirling
Zantac (Ranitidine) 14,392 cases dismissed pending appeal; big settlement in state court cases in April 2024
Proton-Pump Inhibitor 12,819 settlement is lurking
Taxotere (Docetaxel) 9,600 litigation is going poorly for plaintiffs – another Taxotere MDL for watery eyes has strong claims
Hair Relaxer 8,334 pretrial discovery phase, a lot of strong cases for plaintiffs
Cook Medical IVC Filters 7,693 MDL settlement is lurking, really drawn out litigation
Aqueous Film-Forming Foams (AFFF) 7,170 settlement expected in 2024, very strong cases for plaintiffs
Bair Hugger 6,248 settlement efforts, not strong cases for plaintiffs
Paraquat 5,318 first trial should be this year; strong cases with awful injury
Juul Labs 5,108 settled
Roundup 4,253 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 2,697 smaller hernia mesh litigation that should settle in 2024
Paragard IUD Products Liability 2,570 not large cases but strong liability case for plaintiffs
Elmiron 1,865 these cases are settled or in the process of settling
Exactech 1,244 strong cases that may settle this year or next
Valsartan, Losartan, and Irbesartan 1,231 these cases should settled in 2024

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.

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