Multi-district Litigation Proceedings (MDLs)

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We are now at the point where half of the cases on the federal civil docket are consolidated in multi-district litigation proceedings (MDLs).  In these proceedings, a single federal district court judge conducts all pretrial proceedings—including dispositive motions.  In theory, the cases return to their original courts for trial, but, in reality, very few do because, like every other type of litigation, the vast majority of cases settle before trial.

MDLs make global peace easier to obtain for defendants, but they also put a lot of power in the hands of the judges selected to oversee them.  Many of the rules of civil procedure are hard to apply when there are thousands of cases consolidated in one proceeding, and judges have had to be creative.  Moreover, because these are all pretrial proceedings, it is very difficult to appeal decisions by the MDL judge that might be a bit too creative.

This teleforum will examine the question: is it time to write rules of procedure specifically designed for MDLs?

Featuring:

Alex Dahl, Founder & CEO, Strategic Policy Counsel, PLLC

Max Heerman, Senior Legal Counsel, Litigation, Medtronic

 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

 

 

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Litigation Practice Group, was recorded on Friday, September 20, 2019, during a live teleforum conference call held exclusively for Federalist Society members.          

 

Micah Wallen:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on Multi-district Litigation Proceedings, otherwise known as MDLs. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us Alex Dahl, who is General Counsel of Lawyers for Civil Justice. We also have Max Heerman, who is Senior Legal Counsel of Litigation at Medtronic, and Medtronic is a member of Lawyers for Civil Justice. After our speakers give their opening remarks, we will then go to audience Q&A.

 

      Thank you both for sharing with us today. Alex, the floor is yours. And Alex, before we start off, why don't you give us an idea of how you are both related to Lawyers for Civil Justice and what that organization is all about?

 

Alexander Dahl:  Thank you, Micah. It's a great pleasure to be speaking with The Federalist Society teleforum. I appreciate the opportunity. Lawyers for Civil Justice is an over 30-year-old organization dedicated to legal reform. Our focus is primarily procedural rule, and particularly the Federal Rules of Civil Procedure. Our members include about 25 Fortune 500 companies, about 75 law firms from across the country, and the three major defense bar organizations. The reason why we are talking about this topic today is that LCJ is advocating for amendments to the Federal Rules of Civil Procedure to help bring the same kinds of transparency and procedural uniformity to multi-district litigation as they provide for all other cases.

 

      A little background about MDLs will be helpful to set the table here. Multi-district litigation was created by Congress in 1968 for the purpose of facilitating, quote, "consolidation for pretrial purposes," unquote. I think it's fair to say that no one foresaw what MDLs would become by today. MDL cases now are approximately half of the federal civil docket, and they're highly concentrated. The largest 25 MDL cases contain 90 percent of the cases that have been consolidated into MDLs.

 

Max Heerman:  So this is Max Heerman. Just to underscore, the number of cases we're now seeing the MDLs I think demonstrates that rule reform efforts like LCJ's aimed at improving MDLs is not a narrow or specialized issue. Rules reform affecting MDLs would affect half of the federal docket. I think anyone who's interested in the Federal Rules of Civil Procedure and the functioning of those rules should take an interest in reforming rules that affect MDLs. So it's a very broad-based issue that will affect lots of plaintiffs and defendants in the system.

 

Alexander Dahl:  It's well known that MDL cases are characterized by ad hoc procedures in material ways. And what I mean by ad hoc procedures is procedures that aren't consistent or necessarily following the Federal Rules of Civil Procedure. To Max's point, one reason why this is important is that Rule 1 of the Federal Rules of Civil Procedure says that those rules govern, quote, "all civil actions and proceedings," unquote. But it's very well known that that is just not true in material ways in some of the -- especially in largest MDL cases.

 

      The problems that this creates include a lack of transparency and uniformity, the very reasons why the FRCT were developed and enacted in 1938 in the first place. And, even more troublesome, it has produced, in some ways, an unbalanced procedural environment that affects different parties differently, another reason why the FRCT were established.

 

      So Lawyers for Civil Justice is advocating in front of the civil rules advisory committee for a handful of amendments to the FRCT that would bring MDL practice within the existing structure of federal procedural rules. And we're going to talk about a couple of those today. And our focus is going to be on LCJ's proposals that include, number one, an initial census of claims, and what I mean by that is some way to ensure that there is some merit or relationship between the claims filed and the allegations in the case; number two, a pathway to interlocutory review of potentially case dispositive motions in MDL cases; number three, a rule that would require consent by the parties for a bellwether trial to proceed; and number four, disclosure of third party litigation funding arrangements.

 

      And that last topic, TPLF, is not specific to MDLs, but it's very important in MDLs. So before we talk about those specific things, Max, I wonder if you could give us some perspective when we're talking about how different MDL procedures can be from what we're all used to in more one-on-one party litigation. Could you give us some kind of color example of how different MDLs can be?

 

Max Heerman:  Sure. Thanks, Alex. Oftentimes, when a product is the subject of an MDL, that product has been on the market for some time before the MDL starts. And it may have been the subject of litigation in low numbers in the federal system before it becomes the subject of high number claims and an MDL. And in that litigation involving that product that precedes the MDL, what could happen, and often does, is that the plaintiff will allege an injury and assert that the injury was caused by a defect in the product. The defendant will make a motion under rule 12(b)(6) to dismiss the claim and argue that the plaintiff hasn't met the pleading standard under the Iqbal/Twombly decisions of 2007 and 2009 from the U.S. Supreme Court.

 

      And obviously, depending on the case and what's alleged in the complaint, defendants have a decent rate of success on those motions. So in many cases, the case is dismissed because the plaintiff fails to meet that standard. There's no discovery taken of the defendant. However, years later, if that same product is the subject of a large enough number of law suits that it becomes part of an MDL, that same claim is one, perhaps, of hundreds or thousands in front of the MDL court. It's very unlikely that the claim would be the subject of a 12(b)(6) motion on Iqbal/Twombly pleading standards because the judge would perhaps, and maybe even likely decide he or she is not going to entertain such motions. And so the case obviously would not be dismissed, and there would be discovery and so forth.

 

      And of course, in one way, what I'm talking about there is the difference in result, that the plaintiff who brings a claim before the MDL is going to have potentially a different result than the plaintiff who brings the claim in an MDL. That's a problem, but we all know that in the federal court system, similar claims do sometimes end up with dissimilar results. The real problem that we are focusing on here is not just that the result is different, but that the process is different. The plaintiff who brings the claim before there's an MDL is subject to Rule 12(b)(6) in a real way and has to overcome the pleading standard that the Supreme Court has established in the Iqbal cases. The plaintiff who brings a claim after an MDL is established as a practical matter does not have to clear that procedural hurdle, and that is a problem because of the unbalanced procedural environment between those two types of cases.

 

Alexander Dahl:  So that leads to our fist topic. We're advocating for rule reform, and it involves what I mentioned earlier called an initial census of claims. The problem here is that some of these MDL cases, particularly the largest 25 or so, are really well understood to have hundreds or even thousands of completely meritless claims. And when I mean meritless, I mean no relationship whatsoever to the cause of action. The plaintiff never took the medicine, was never exposed to the harm, but the claim is file and it exists. And this goes to the nature of MDLs and how they differ.

 

      There's a real practical, pragmatic issue here, which is that the current Federal Rules of Civil Procedure weren't designed for a single litigation to have 15,000 parties. And there is reason to be sympathetic with a judge who doesn't want to hear 15,000 12(b)(6) motions. At the same time, we don't think that that's a reason that you should abandon the whole idea that it's important to vet claims for merit early, a profound idea of the original Federal Rules of Civil Procedure. And you can see that because Rules 8 and 9 and 12 and 56 are all designed to protect the judiciary from an overwhelming number of meritless claims just sitting there unresolved. And it's very judicially inefficient.

 

      So there is a problem with meritless claims, MDLs. I think it's generally understood that in these big MDLs that we're focused on that 30 to 40 percent or higher of the claims fit that definition, no relationship whatsoever to the allegations of the case. And MDL cases create what has been described as a Field of Dreams phenomenon, that if you build it, they will come. As soon as an MDL exists, and it is advertised, and that kind of thing, it increases the number of claims dramatically. There is a phrase that is used to describe this. They call it "get a name, file a claim." And that is, to a large degree, a good summation of how these lawsuits become gigantic.

 

      We think it's very important that the judicial system deal with this problem of finding out which claims have merit and which don't, and it is important for a lot of reasons. Litigation dynamics -- let's start with number one. It's a fundamental idea that somebody who's hauled into court should be able to understand the claims that are made against them. And any one-on-one lawsuit would, of course, as Max mentioned, meet that test by 12(b)(6) and other ways.

 

      It's also important for these MDLs that the parties and the judge understand what types of claims really exist in the MDL. Often times, these big mass court cases will have different categories, people with different allegations of injuries or effects or exposures. And without any vetting into the claims, no one really knows what categories those are and what percentage of the thousands of cases fit into any particular category. That kind of information is also very important to settle cases. Most MDL cases end in settlement, and it's very important for the parties to understand what's really in the claims before they can come up with a valuation that they can agree on for settlement purposes.

 

      And finally, a topic we'll talk about later, it's very important to know what the claims look like to select bellwether trials. I mentioned that the original MDL statute created MDLs for the purpose of pretrial procedure, but it's a very common practice to have bellwether trials. The idea behind that is that you try cases that are representative of the larger claim pool, but when you don't know what that larger claim pool is, it makes it impossible to find a case that is actually representative of that pool. So those are some of the litigation dynamics.

 

      Max, I know that there are also some very important regulatory dynamics, less important to the litigation part but very important to companies like yours. Do you want to talk about the regulatory issues?

 

Max Heerman:  Yeah, regulatory and other issues. So when there are a lot of meritless claims filed in an MDL, all of those claims, particularly if you're talking about an organization like Medtronic, which is a medical device company, or a pharmaceutical company, both of whom are regulated by FDA, those types of defendants are required to report the allegations to FDA as an adverse event report. And FDA looks at adverse event reports and has a system for determining if there's a signal that would show that there are more than the expected number of adverse events relating to a device or to a drug.

 

      And they could potentially get distorted signals if the adverse event reports jump during a period of time because a large number of meritless claims are being filed in an MDL. And that, of course, distorts the whole regulatory process, causes the regulators to perhaps spend an inordinate amount of time sifting through information about meritless claims, time that could be better spent on other regulatory matters that would be of a higher priority for the public health. So a large number of meritless claims does create a regulatory problem there.

 

      Another problem that it causes is potentially the defendant will have to report the number of claims asserted against it in an SEC disclosure. And again, if those claims are meritless, that disclosure may have unnecessary effects on the investment community and the companies themselves, and investors may not have the type of return on their investment that they would otherwise be entitled to because of a depressed share value that resulted from SEC disclosures about meritless claims.

 

      And then, finally, not necessarily a regulatory effect, but an effect on patients. If patients see that are a large number of claims relating to a medial device or a drug, they are less likely to continue to take that drug or to use that medical device, even if it's been prescribed to them. And doctors may also be more reluctant to prescribe devices and drugs that are subject to a large number of claims, many of which may be meritless, all of which potentially have a negative effect on patient health throughout the United States. So there are not just problems in the litigation dynamic that are created by large numbers of meritless claims in MDLs, but there are problems with patient health and with a regulatory system that these meritless claims also cause.

 

Alexander Dahl:  Max, I think that the interesting part of that to me is that I think what you're really saying in all those different categories is that people think that it's meaningful, that the number is meaningful. They'll read a newspaper article, "There are 15,000 claims about such and such," and they think that means something. And regulators do, patients do, everybody thinks that that number has some relevance when the fact is that in a lot of these cases, nobody knows what the number is.

 

      And what we do know is that that number is very likely exaggerated by a very significant percentage of claims that just have absolutely no relationship to the cause of action. And I think that it's in part because these are part of the judicial system that people give that some credibility. They think that perhaps the judicial system wouldn't let a completely unrelated claim continue to exist for a long period of time untested or researched, but that's what is happening in some of these big cases.

 

Max Heerman:  That's exactly right. The fact that the cases exist and are not immediately dismissed in the federal court system does give them an air of legitimacy that in many cases is not correct. As you mentioned, often 30 to 40 percent or higher of the number of claims in an MDL turn out to be meritless, not just in the sense that they don't ultimately succeed, but in the sense that, as you mentioned, the claimant was not even exposed to the harm or cannot even allege harm that could potentially result from exposure.

 

Alexander Dahl:  So Lawyers for Civil Justice has been advocating what we think is a very straightforward solution to this problem would be an amendment to the Federal Rules of Civil Procedure in the form of a required disclosure. It would require plaintiffs in MDLs to produce evidence of the exposure to the alleged cause and a harm from that cause within 60 days of filing their case. We think that this would not impose a significant burden on the court. After all, it's a standard that in one-on-0 litigation has to be met by Rule 11. And to survive a motion to dismiss, you need some evidence that you have a claim. And therefore, we think lawyers should have that information already before they file a claim and requiring it to be disclosed within 60 days does not impose a significant burden.

 

      The particular reason why we think this would work as a rule is that it would deter the filing of meritless claims. I mentioned earlier that there's a pragmatic aspect to MDL cases with thousands of claimants that there's an administration problem here with lots of parties. But a rule that would automatically in every case require the evidence of exposure and harm within 60 days would make sure that everybody knows the first thing that's going to happen after you file a claim is you're going to be asked for that information. And so people would be much more reluctant to file claims that really have no relationship whatsoever to the case.

 

      We think, in fact, that judges who preside over these MDLs should want a rule like this because it would take this huge issue off of the table of their -- what they do now is they have to decide how to deal with this. Everyone, as I mentioned, sort of knows that there are lots of meritless cases. Each judge has to decide in a particular case how to deal with that or whether to deal with that. But a rule that would require that evidence right out of the bat would essentially take that issue off of their plate.

 

      So I think that we could now turn, Max, to our second issue, if you're ready for that? So the second issue that we want to talk about is interlocutory appellate review. MDL proceedings are different in a number of ways from ordinary cases that justify a new pathway, a different pathway for interlocutory review. As we've mentioned here, they are characterized by having a lot more parties, thousands of -- I think the biggest cases are more than 15,000, so some of these are very big cases. They have a lot of claims. They have a dynamic where particular decisions create very strong pressure to settle cases, and in particular, preemption motions, a Daubert motion on general causation. These are the kind of things that can really have an effect on whether the case is going to go forward or not.

 

      It's analogous, as a footnote, to why the rules committee produced an interlocutory appeal for class action certification in 23(f) because those certification decisions were perceived as almost like a final judgement. They had such a profound impact on the cases. There are motions in the MDL world that are like that, the ones I mentioned.

 

      It's also important because right now there is asymmetrical access to appellate review. When you think of it this way from the point of view of a corporation’s maxed out, you’ve got to start this.

 

Max Heerman:  Right. So the dynamic in an MDL with a dispositive motion often goes like this: a defendant will file a motion for summary judgment, maybe on Daubert ground – that is on the grounds that the plaintiff’s don’t have expert support for their theory of general causation. And that motion may be denied by the federal district court judge who has the MDL. Then the whole group of cases that was subject to that motion will proceed. Perhaps there will be a bellwether trial. And certainly possible with trials, always possible that any result could come from that bellwether trial. If the plaintiff wins, then and only then would the defendant have an opportunity to appeal the legal issues that were brought in the motion for summary judgment and in the Daubert motion. So essentially, the defendant has to wait until they lose a trial before they will get an opportunity to appeal.

 

      On the other hand, however, if the motion for summary judgment that the defendant brings is granted, and a large number of the cases in the MDL are dismissed by the MDL judge, in that case the plaintiffs immediately has an opportunity to appeal that decision. The plaintiff is not in the same position as the defendant where they have to wait for an ultimate loss, perhaps with a large and well-publicized dollar figure assigned to it before they get an opportunity to get appellate review with the federal circuit court.

 

Alexander Dahl: So the current pathway that could be used for an interlocutory review in a case like Max mentioned is 1292(b). And the problem with 1292(b) is that it’s just not solving the problem, or capable of solving this problem, of not enough interlocutory review and the asymmetrical access to it. To put it bluntly, I suppose, the main reason is that 1292 effectively has a district court veto; in other words, it’s up to the district court to decide whether to certify an issue for interlocutory review. And of course it’s the district court that makes the decision – the underlying decision as well.

 

      John Beisner, who is a very well-respected lawyer in MDL and class action cases, did thorough research on this topic and submitted it to the Civil Rules Advisory Committee. And what John Beisner found is that there’re no examples of 1292(b) certification of potentially dispositive motions like we’re talking about in MDL cases. And it shows that this is just not an effective rule mechanism for allowing appellate review of these really important decisions in these big MDL cases.

 

      So what we’re advocating for is a rule that would provide a new pathway to interlocutory review. We think that properly written it would lead to a very low volume of appeals, only potentially dispositive motions. And we think that the benefits are really profound. They would give parties greater certainty, more confidence and finality, and more confidence in the process that these big issues are really getting their day in court.

 

Max Heerman:  Well, one thing that some of the people on the other side of this issue think that this particular change in the rules is not merited have argued is that it would lengthen the process of getting to an ultimate resolution in the MDL by introducing this kind of interlocutory appeal. LCJ’s position on that, and Alex can state it better than I, is that it isn’t necessary to stay all of the MDL proceedings while an issue like this is up on appeal to the circuit court.

 

Alexander Dahl:  Right. I mean, the issue of delay is a common one in interlocutory review and it’s something that people brief and argue about whether the case should be stayed. And that is probably how these cases should be dealt with. There is a possibility that some of these motions will delay. But on the other hand, there is, we think, an equal or better chance that interlocutory review of these important decisions could actually expedite the MDL process. The dynamics that Max just described of you have to go through trial after trial after trial until you lose one on the motions that you want to appeal is not expediting these cases; it’s dragging them out.

 

      In these cases where big, important legal decisions—preemption, Daubert motions—the denial of those motions is leading to years of trial practice. And interlocutory review on those could greatly expedite the resolution of cases, even regardless of how that decision comes out because the parties would know one way or another whether the legal theory that is the basis of all of those cases’ trial is going to stand up or not. So we think that the issue of delay, although real, is just not the thing that should decide this question of whether interlocutory appeal should exist in MDL cases.

 

      Our last topic, and I alluded to this earlier, is that there is controversy about how bellwether cases are selected in MDLs. And we think this should be remedied by a fairly simple rule amendment that would simply require consent of the parties for a bellwether trial to proceed. Remember, the original idea of the MDL statute was consolidation for pre-trial purposes. The statute does not give MDL judges the power to hold trials. And so if there’s going to be a bellwether trial, it ought to be by the consent of the parties.

 

      The original idea of this statute is that as soon as cases are ready for trial that they're remanded to the original filing court for trial. Courts are—I’ll say this judiciously—bending jurisdictional rules to conduct these trials and there are several appellate court decisions on this topic that are important to the discussion. I think, though, bellwether trials can be very valuable in some cases. On the other hand, many are not, and a lot of this has to do with how they are selected.

 

      Often judges will select one side to pick a few, the other side to pick a few, and the court picks a few and they have a process where some of those cases go to trial. But as I understand it, one of the dynamics that happens is that when bellwether trials proceed and that case is picked by one side or the other, that even the result is not taken as representative of the claims because that case has been picked in that way. And so a lot of times the goal of the bellwether—to give parties more information about the case—really -- you know, at the end of the case, nobody really thinks that’s what the bellwether has achieved. A process where everyone consents to that particular case going to trial would be helpful to make sure that the bellwether is fulfilling the purpose for which it’s proposed.

 

Max Heerman:  Yeah, I think, at least from the defense side, and I’ve heard the same thing from some of the leading plaintiff’s lawyers who practice in MDLs, the utility of bellwether trials is being questioned more and more for the reasons that Alex described. They just don’t seem, in many cases, to be representative. They don’t seem to give the parties an idea of how a jury will view the legal and fact issues in the bulk of the docket, and therefore they don’t serve their purpose which really is to drive settlement.

 

      Another point here: Alex mentioned bending the jurisdictional rules. In some cases, judges will decide, “I don’t want to do that so I’m going to only have bellwether trials of cases that originated in the federal district where I sit.” And the problem with that, of course, is that often that is a variable number of cases, and therefore there are very few to choose from. And again you end up with a skewed sample of cases that are potentially subject to the bellwether trial process. And they're not representative and they don’t result in the resolution of the overall docket as was anticipated.

 

Alexander Dahl:  Right. And not representative for a lot of reasons that go beyond just the nature of the claims. That it’s important, of course, in these cases what jurisdiction they come from, the law of the jurisdiction, what the local juries would be like, and that kind of thing. So trying just the cases from one federal district is not going to give the parties the kind of information they need either.

 

      Our view is that more uniformity is needed in the trial selection process. That would be helpful to the parties and the judicial system overall to help the system do what it’s intended to do with bellwether trials.

 

      Okay, so we want to hear your questions. Before we turn to that, I want to just offer a couple of resources to people who are interested in this topic. There’s more information about Lawyers for Civil Justice’s advocacy on our website, which is LFCJ.com (Lawyers for Civil Justice). And you can also follow our Twitter feed @LCJReform. There is also a site called Rules 4 MDLs and a similar Twitter handle with the same name.

 

      So with that, Micah, why don’t you open it up for questions?

 

Micah Wallen:  Absolutely. We’ll go ahead and head to our first question.

 

John Vecchione:  This is John Vecchione and I’m wearing my John Vecchione, PLLC hat today. These all sound very defendant-friendly, these proposals, and they do seem to strike me as allowing delay, and particularly letting the defendant pick the bellwether case, which the plaintiff has the burden on every issue. So it strikes me that they should get to pick what goes forward.

 

      But my question about all this is is the plaintiff’s fact sheet in all of these MDLs have to say whether you took the drug or what happened. In all these MDLs, the plaintiff’s fact sheet is required pretty promptly. And I’m wondering why you don’t think the plaintiff’s fact sheet does this well enough because I know on the plaintiff’s side, god knows -- we call it the people who climb on the bus after it crashes. Those folks you want to weed out. Why don’t the plaintiff’s fact sheets do this?

 

      And, also, doesn’t allowing the defendant to have a veto on the bellwethers skew the process as it would be if you just were allowed to file your case in your own state as a lot of plaintiffs would want to do and not go to the MDL? So my question is is this just a defendant-friendly program? Is there anything in it for the plaintiffs at all?

 

Max Heerman:  So this is Max Heerman and Alex will jump in too. I’m at Medtronic, which is typically a defendant in the court system and in MDLs, so I certainly do have a defendant’s perspective on these issues. So I have to plead guilty to that.

 

      I do think, however, that the reform that LCJ is adjusting would benefit the meritorious claims in MDLs. I do think that the plaintiffs that have the most meritorious claims often suffer some prejudices that the defendants also suffer from. They get put in the back of the line behind non-meritorious cases. There’s delay that they have to deal with, and a number of other issues that most meritorious claims suffer from in MDLs. And I think that’s a problem.

 

      As to the issue of plaintiff fact sheets, plaintiff fact sheets can be helpful in MDLs if they're done right. I would agree with that. But the problem is is there isn’t a rule that requires plaintiff fact sheets. So neither the plaintiffs nor the defendants in an MDL know at the beginning whether there will be fact sheets, and if so, what will be required. And so in my view, that creates an incentive to file non-meritorious claims and see what will happen. Whereas if there was a rule, a no-touch incentive would exist.

 

      Also, the plaintiff fact sheets tend to be the product of a negotiation. And the defendants tend to be put in the position of reviewing the fact sheets for basic information and pointing out errors of omissions. And then those get revised and the process becomes very drawn out and results in more delay. And in my view, if there were a rule that made clear from the outset what would be required of the plaintiffs, those problems would be mitigated and perhaps solved. I don't know if Alex has anything to add.

 

Alexander Dahl:  Yeah, I agree with all of those points, Max. I would say to the original premise of the question about whether this is designed to be defendant-friendly, our answer is no. Our purpose is to rebalance the playing field to make it fair for everyone and to do that in a transparent and open way.

 

      Plaintiff fact sheets, well known as PFS in this world, are a discovery device that has been developed in an ad hoc way in the breach where rules don’t apply. And it’s the mechanism that people are using to fashion discovery on an ad hoc basis. As I like to say, it’s a discovery device that has a name and it should have a number. It should be part of the Federal Rules of Civil Procedure. It should be knowable.

 

      One of those great revolutions of the FRCP that we take for granted because it was a long time ago – 1938 -- but before 1938 if you were a litigator or a party and you were beginning litigation, you would have no idea what pleadings would be allowed, what motions would be entertained, and the basic procedural things like that until you knew the judge, and unless you knew the judge. And that is a similar situation to some of these cases. The people who know what a plaintiff fact sheet is and how it’s going to work in a particular case are a very small handful of people. There’s not a class about this in law school. There’s not a place where you can look it up and read the rule and teach it and discuss it because it’s not written down. And that’s just not compatible with the mission of the FRCP described by Rule 1.

 

      But to your point, it’s a good one. Plaintiff fact sheets are used. The Civil Rules Committee did a study of the big MDL cases and found that it was about 85 percent of cases using them. I think that proves that they don’t solve the problem that we’re talking about because even though lots of cases are using plaintiff fact sheets, it is still true that thousands and thousands of meritless claims get filed and nothing is done to address them or to disincentivize the filing of those cases.

 

      I think we know from that statistic that plaintiff fact sheets are not the answer. They take too long. They're subject to disparate levels of focus, enforcement, adherence, and they're issued at different times in litigation. In fact, I’ve heard that it’s not uncommon for plaintiff fact sheets to be issued after a settlement agreement has been reached. That’s way too late in the process to give the kind of information to the litigators that we’ve been talking about on this call.

 

Micah Wallen:  All right. We have another question in the queue, so without further ado, we’ll move to our next caller.

 

Caller 2:  Hello. I’m a plaintiff’s counsel in the Hyundai-Kia car fire cases. And our cases were we started in New Jersey in the district court, and the defense counsel, of course, wanted to consolidate them and make them MDL cases. And the judge in Washington state determined that the case is not ripe for MDL. And I’m wondering if the speakers could comment on when is a case ripe for MDL?

 

Alexander Dahl:  Well, I don't know anything about that case. That topic of when consolidation occurs is kind of outside of this rule’s focus. But there is, as I'm sure you know, a Joint Panel on Multidistrict Litigation and there’s a system for this that parties to a case can file with the JPML asking for consolidation. And the JPML is the entity that makes that decision and decides what court will be handling the case if consolidation is granted. Max, do you have any other thoughts on that?

 

Max Heerman:  Yeah, I don't have the standard right in front of me. But there needs to be some level of commonality among the claims, and the JPML decides based on a petition from the plaintiffs who are asking. Often, it’s the plaintiffs who are asking for an MDL. The defendants can also be the party asking for the MDL. But the JPML will either grant or deny, based on papers and argument, a request for an MDL. And there is a standard that they apply and it does include a component of commonality among the claims.

 

      There are also in many states procedures that allow for coordinative proceedings that are somewhat similar in nature to what you see in a federal MDL. So I’m not quite sure about how your situation played out. But you mentioned that a Washington state judge said the claims were not ripe, which leads me to believe that maybe what happened was that perhaps Washington state -- I’m not familiar with their rules, but perhaps Washington state has a coordinative proceedings rule. A judge how ended up deciding a motion on coordinating proceedings in that state decided that the standard hadn’t been met. But that’s just speculation on my part.

 

Alexander Dahl:  Just one small editorial, I think I said joint panel if I did. I apologize. It’s the Judicial Panel on Multidistrict Litigation.

 

Micah Wallen:  In the meantime, I’ll kick it back over to Alex and Max.

 

Alexander Dahl:  Great. Well, I think we’ll wrap it up. I’ll just mention in closing that I mentioned we’re advocating for rule changes to the Civil Rules Advisory Committee. This is an active question on their docket. They have been looking into, studying MDL practice for at least a year and a half now. And they're doing a very careful, thorough job, and we are encouraging that. And hopefully they will make the decision to move forward to considering particular rules. But they have not made that decision yet, and they're still in the process of a very thorough investigation of MDL practices.

 

Max Heerman:  And I’d just like to close by saying thank you to Micah and to The Federalist Society for the opportunity to talk on this topic, which is, as I mentioned at the beginning, an important one. Any changes that would affect MDLs would affect perhaps half, or close to half, of the entire federal docket. So we think it’s an important issue that all lawyers who are interest in the Federal Rules of Civil Procedure should take an interest in.

 

Alexander Dahl:  I agree. And I’d like to add my thanks to The Federalist Society. Thanks very much.

 

Micah Wallen:  On behalf of The Federalist Society, I’d like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected] Thank you all for joining us. We are adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.