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Meritless claims clog courts, lawyers’ group calls for more teeth amending Rule 26

By John Sammon | Oct 6, 2018


WASHINGTON D.C. (Legal Newsline) - A new report issued on Oct. 4 by the Lawyers for Civil Justice (LCJ) said pending meritless product liability claims backing up like a logjam in the mulit-district litigation (MDL) court system, unfairly puts the onus of cost on defendants and their attorneys and needs reform.

"The growth of MDL cases, now 47 percent of the federal civil docket, is fueled largely by personal injury and products liability cases, and this is important because these are the types of cases where we see the most acute problems when applying the current Federal Rules of Civil Procedure (FRCP)," Alex Dahl, general counsel to the LCJ, told Legal Newsline.  

FRCP rules govern civil procedure in U.S. District federal courts. 

The LCJ is a nonprofit national coalition of defense trial lawyers, lawyers’ organizations, law firms and corporations.

"The (FRCP) rules don't have a practical procedure for early vetting of such a high volume of claims, and they don't provide interlocutory review of key MDL rulings that could provide much needed clarity to parties, so the FRPC could be modified to provide transparent and predictable procedures in MDL cases just like they do in the other 53 percent of cases," Dahl said.

The intent of the MDL was to provide a global forum to speed legal procedures to resolve and settle federal court cases, complex large cases, such as product liability suits or disaster compensation.

However,  according to the LCJ report, the unintended result of the MDL process in recent years has been to encourage the filing of lawsuits that ordinarily would not survive if they had to stand alone on their own merits. According to officials of the LCJ, the growth in meritless product liability cases filed in MDL represents a “lawsuit tsunami.”  

As a result, product liability cases are stacked up in the MDL process pending resolution that gives unfair advantage to plaintiffs.

The LCJ report called for amendment of FRCP Rule 26, mandating that a plaintiff prove evidence of exposure and harm. The amendment would require disclosure of evidence showing the cause and nature of an alleged injury.

“The sheer number of cases filed in the MDL means that defendants cannot exercise their discovery rights until the litigation is well underway,” the LCJ report concluded. “Defendants (and courts) must expend significant resources to identify and combat these claims.”

The report said defense lawyers often do not have the basic information early-on to defend a case and plaintiff fact sheets do not provide the necessary information. What is lacking the report said is a trigger mechanism, to test and remove meritless cases from the dockets at the start before they can proceed into costly litigation.

“Baseless claims are harmful to the judicial system, corporate defendants and the public,” the report stated. “Ignoring dockets that are overloaded with meritless complaints undermines public confidence in the courts and imposes administrative burdens.”

Rule 26 should be applied the report said. The practical effect will be that fewer meritless cases will be filed.

Even if a meritless claim is filed, the report noted that by tightening the burden of proving a claim’s merits at the start, the corporate defendant and its attorney would not have to spend the same resources combating spurious claims.

“Absent such a rule, plaintiffs will continue to park meritless cases in an MDL,” the LCJ report predicted.

According to the LCJ, filings in MDL’s have increased four times since 1992 from 40,000 to just under 160,000 cases. Such cases represent 47 percent of the federal caseload and by the end of 2017 266,108 civil cases were pending in federal court---a tripling in the last 15 years.

Most of the complaints (90 percent) are product liability cases.

The big jump starting in 1992 came about because of asbestos and breast implant litigation the LCJ report said, with products liability cases accounting for an approximate 42 percent of current civil caseload.

“The growth in product liability cases alone accounts for almost 88 percent of the growth in MDL cases since 1992,” the report noted.

A prime example of the problem of meritless claims the LCJ cited was the case against Vioxx. Marketed in 1999 as a drug (anti-inflammatory) to treat osteoarthritis, the drug was withdrawn in 2004 after it was found to increase the risk of cardiovascular disease.

Massive lawsuits resulted, by March of 2006 10,000 cases and 190 class actions filed against Merck & Co., the New Jersey-based marketer of the drug.

A Vioxx case study, LCJ officials said, found that 30 percent of plaintiffs filing actions against the company had failed to satisfy the basic requirements to receive their claims, including proving injury, minimum use of the drug and use of the medicine within the appropriate time period.  

A special Advisory Committee on Civil Rules under the Federal Judicial Center in Washington D.C. is currently evaluating whether the FRCP should be updated because the present rules are ineffective in dealing with the growth in meritless product liability MDL cases.

The LCJ recommended six areas of the FRCP that should be adapted to the realities of the current MDL caseload,  pleadings, dismissal, joinder (multiple issues heard in one hearing), required discovery disclosure, trial and appellate review.



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Lawyers for Civil Justice