Legal scholar sees more MDLs coming

WASHINGTON (Legal Newsline) -- Andrew Bradt sees multi-district litigation (MDL) as the wave of the future.

The University of California Berkeley School of Law professor and civil procedure scholar contends that mass tort litigation isn’t going anywhere. And as class actions become more difficult to maintain, he expects MDL to become more prominent.

“When we have large-scale litigation, the demands on the system are such that we have to have an efficient way to resolve it,” Bradt said. “It doesn’t make sense for there to be 10,000 cases in 10,000 courts across the country. It makes sense for there to be some kind of consolidated proceeding that prevents inefficient duplication of litigation.”

The U.S. Judicial Panel on Multidistrict Litigation, also known as the MDL Panel or JPML, was created in 1968 to determine whether individual cases involving similar issues should be moved from different federal district courts to a single federal district court for pretrial proceedings.

If the panel, comprised of seven federal judges appointed by the Chief Justice of the United States, decides to consolidate the cases, it then chooses which federal district court will conduct those proceedings.

Statistics from the MDL Panel show that since its creation, there have been 415,995 civil actions centralized for pretrial proceedings, up from 393,676 in 2011 and 349,913 in 2010. As of Sept. 30, 2012, the end of the last fiscal year, there were 60,696 actions pending throughout 55 federal district courts.

MDL Panel statistics also show that as of March 5, 2013, there were 67,502 actions pending throughout 56 federal district courts.

These dockets include the BP oil spill litigation in the Eastern District of Louisiana, which involves 654 pending actions filed by the U.S. Justice Department, Gulf Coast states and other plaintiffs after the Deepwater Horizon drilling rig exploded in April 2010. The trial began in late February to assign blame for the blast, which killed 11 workers and caused the worst offshore oil spill in U.S. history.

Other high-profile MDL cases include the National Football League players’ concussion injury litigation in the Eastern District of Pennsylvania, with 184 pending actions; the Toyota Motor Corp. unintended acceleration litigation in the Central District of California, with 354 pending actions; and the Yasmin and Yaz birth control litigation in the Southern District of Illinois, with 9,566 pending actions.

For Bradt, these large MDL cases offer federal judges an opportunity to exercise creativity in reaching resolution on significant issues facing the country.

He said that MDL started as an experiment to handle the increase in antitrust litigation involving the electrical equipment industry in the 1960s. MDL filings initially fluctuated, but then certain filings, particularly products liability, rapidly increased in the 1990s.

Bradt argues that these cases would have been more appropriate for class-action treatment. But when the U.S. Supreme Court refused to certify a class of present and future asbestos claimants in Amchem Products, Inc. v. Windsor in 1997, and rejected another asbestos class settlement in Ortiz v. Fibreboard Corp., in 1999, products-liability plaintiffs moved away from filing nationwide mass tort class actions.

“MDL has really stepped in to fill that void,” Bradt said. “The primary difference is that the cases are not consolidated into a single class. And there’s not a single class representative. Rather, the cases retain their individual character and would need to be tried or settled individually.”

For further evidence of the increase in MDL filings, Bradt refers to a study in the Kansas Law Review by Thomas E. Willging and Emery G. Lee III, senior researchers at the Federal Judicial Center,

The study, “From Class Actions to Multidistrict Consolidations: Aggregate Mass-Tort Litigation After Ortiz,” shows that prior to 1990, the MDL Panel considered a total of 22 products-liability proceedings and only consolidated six of them.

“In other words, the JPML considered about one products -liability proceeding per year, on average, and declined to order consolidation of the overwhelming majority of those it did consider,” according to the study.

The study shows that between 1990 and 2008, the panel considered at least 154 products-liability MDL proceedings and consolidated 112 of them. So, by the end of 2008, the MDL Panel considered an average of eight products-liability proceedings per year.

“In short,” the study shows, “the JPML has become much more likely to order consolidation of products-liability proceedings—almost three times as likely to consolidate—at the same time as the number of products-liability proceedings has increased.”

Peter Herzog, a partner in the St. Louis office of Bryan Cave LLP, points to another reason for the increase in MDL filings.

Herzog, who has handled the defense of 150 class actions and argued before the MDL Panel at least six times, explains that the Class Action Fairness Act of 2005 increased federal jurisdiction over class actions. Since then, he said he’s noticed a general increase in federal court filings, especially in the labor, securities and mass tort areas.

“My personal opinion is that these cases are frequently filed in multiple courts around the country because plaintiffs are trying to find a judge who is going to be most favorable to them,” Herzog said. “And then they will seek to have the cases transferred to that judge under the MDL statute.”

While plaintiffs and defendants tend to agree on coordinating their cases, Herzog finds that they often disagree over the federal judge who is chosen to oversee those cases.

“Sometimes the parties agree, and sometimes the parties disagree, because of the judge’s prior rulings on some issues,” Herzog said. “They may feel he or she is better for their side or better for the other side … But the JPML is the one that ultimately decides.”

Bradt adds that MDL has so far seen success in promoting large-scale settlements because it brings many groups of plaintiffs to one venue for consolidated pretrial proceedings.

“We’ll continue to see an increased use of the MDL process,” he said. “I think that as it becomes more prominent, courts will continue to get better at administering the process. We’ll get to a series of best practices that make the process more predictable.”