Survey Finding Flaws in MDL System Misses the Mark

Last month, Elizabeth Burch (University of Georgia School of Law) and Margaret Williams (Johns Hopkins) published a paper entitled Perceptions of Justice in Multidistrict Litigation. The paper was based on a survey of 217 women who are plaintiffs in various mass tort MDLs. Based on this survey, the authors conclude that the MDL system for handling mass torts in federal court is deeply flawed and fails to deliver justice to victims.

This paper has been making the rounds in legal academic circles and received some attention from national news outlets like Reuters. In my humble opinion as a lawyer directly involved in the MDL mass tort system, this paper is based on an absurdly flawed survey that is not reflective of most MDL plaintiffs.

Summary of the Survey

Burch and Williams based their sweeping opinions about the MDL system on their own online survey of 217 women who were plaintiffs in “women’s health” MDLs. Over 85% of the participants were involved in the pelvic mesh MDL. The participants were described as “self-selected,” which apparently means they were women who found the survey online and were motivated enough to complete it.

First, the respondents were asked about what motivated them to become plaintiffs in the MDL. Only 55% of the respondents named financial compensation as their primary motivation, which from my own experience is not even close to reality (but more on that later).

The survey went on to ask a broad range of questions about the respondent’s experience as plaintiffs in the MDL. The results reflected dissatisfaction with virtually every aspect of the process, with most of the discontent focused on the lawyers. Over 66% said they were “somewhat” or “extremely” dissatisfied with their lawyers. Over 75% complained that they were not keep informed about the status of their case. Around 60% said their lawyers’ contingency fee was unreasonable and the same percentage said they did not trust their lawyers.

Finally, the survey respondents were very unhappy with how long their cases took to get resolved (the average was over 4 years). The respondents were most dissatisfied, however, with the amount of money they eventually got in their settlement. Over 80% of respondents who got settlements said they were “somewhat” or “extremely” unhappy with the fairness of that settlement. This of course seems curious considering only half of the participants admitted that money was their motivation for suing.

My Problems with the Survey

Before I go ahead and point out the very obvious problems with this “survey,” it is only fair to note that the authors themselves have admitted weaknesses in their survey. In an interview with Reuters, Elizabeth Burch acknowledged that it’s “not clear” whether her survey was representative of all MDL plaintiffs.

I would respectfully argue, however, that it is abundantly clear that this survey is NOT anything close to an accurate representation of all MDL plaintiffs. The survey participants appear to represent a very small group of “MDL trolls” who were disgruntled because they didn’t get as much money out of their case as they had hoped. The survey was not randomly emailed to all MDL participants (although in fairness that would have been impossible). It was simply published online like a hidden gem for disgruntled MDL plaintiffs scouring the web for somewhere to voice their complaints.

Moreover, the survey was limited to women which automatically makes it non-representative. Women only make up half of the hundreds of thousands of plaintiffs in MDL cases. Also, over 80% of the women were plaintiffs in the pelvic mesh MDL. The pelvic mesh MDL is not representative because it resulted in a low settlement compared to other mass torts. Some pelvic mesh plaintiffs in the lower settlement tiers may have gotten less than $20,000, so it’s hardly surprising that they would be dissatisfied.

My other major problem with this survey is that I don’t think the respondents were being honest about their true motivations for filing suit. My firm does a lot of mass tort work so I’ve talked to hundreds, possibly thousands of MDL plaintiffs over the years. The primary motivation for almost all of them is money, but many of them don’t feel comfortable admitting that. In the survey, only 55% admitted that they were motivated by money. I think the real percentage is probably closer to 80%.

In my opinion, this is one of the fundamental problems with the survey and paper. The authors see the dissatisfaction in the survey results as evidence that the MDL system is inherently flawed because of things like “volume lawyering.” I think the real reason for the dissatisfaction in the survey is much simpler: the respondents thought they were going to get a lot of money and after 4 years they got very little.

If Burch and Williams had surveyed 200 random people (males and females) from other mass tort MDLs (where plaintiffs ended up with higher settlements), they would have come away with a much different picture. For example, consider the average experience of a plaintiff in the Roundup litigation. Over the last year, Bayer has paid out almost $10 billion to settle cases with 90,000 individual plaintiffs. Most of these plaintiffs had pending claims for less than 2 or 3 years and ended up getting several hundred thousand without the stress and uncertainty of a trial. Plaintiffs in some of the early hernia mesh MDLs had similar success.

Unfortunately, the women that Burch and Williams surveyed were plaintiffs in the vaginal mesh MDL. The vaginal mesh MDL ended with a very low settlement payout per plaintiff. Endo International paid $900 million to settle 20,000 vaginal mesh claims, which equated to $45,000 per plaintiff. This was not divided evenly, however, so thousands of vaginal mesh plaintiffs with weaker claims got just a few thousand after 4 years of waiting. Not surprisingly, the vaginal mesh settlement resulted in a lot of unhappy plaintiffs.

There were a lot of complex reasons for why this litigation resulted in such a low settlement, but none of them had anything to do with “volume lawyering” or not keeping clients informed. The MDL system is not perfect, and many of the suggestions Burch and Williams make are actually very good ideas. But their conclusion that the system is fundamentally flawed is misguided and not very well informed.

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