Mass-tort multi-district litigations (MDLs) have been frustrating defendants for a long time. MDL courts, which receive coveted assignments from the Judicial Panel on Multidistrict Litigation, view the hundreds or thousands of new cases on their docket as both a challenge and an invitation for creative resolutions of large-scale alleged harms. The problem is that many MDL courts prize creativity and efficiency over due process. They short-circuit early challenges to inadequate pleadings, order lopsided discovery of defendants but not plaintiffs, and push settlements even when doing so serves neither the interests of single plaintiffs or singled-out defendants. The end result has been a system that is seen to benefit a select cadre of plaintiffs’ lawyers and perhaps some defendants, but not the average defendant or the ordinary litigant.

Those interested in reform have tried both legislation (like the Fairness in Class Action Litigation Act of 2017), and reform of the Federal Rules of Civil Procedure (which is still being considered by the Advisory Committee). So far, neither effort has produced concrete results.

Another way to achieve reform?

Perhaps it’s time to consider a third way. Because mass-tort MDLs are not currently governed by legislation or regular application of the Federal Rules of Civil Procedure, their management relies heavily on acquiescence, if not outright consent, of the parties to the litigation.

Andrew Trask, Of Counsel at Shook, Hardy & Bacon LLP and co-author of the essential Class Action Playbook, has just published an article in the American Journal of Trial Advocacy that outlines how courts can implement common-sense common-law reforms to combat the issues plaguing MDLs without sacrificing either the flexibility they prize or due process for all of the litigants. It’s titled “Ten Principles for Legitimizing MDLS,” [Trask Publishes Law Review Article on Legitimizing MDLs | Intelligence | Shook, Hardy & Bacon (] and advises the following ten easily implemented, common-sense rules of thumb.

  1. MDLs have real-world effects. Judges count on this principle to justify ambitious discovery and injunctive relief. But they tend to overlook the problems that can arise when lawyers’ advertising campaigns discourage people from taking prescribed medicine, or litigants undergo unnecessary procedures to remove working medical devices.
  2. Junk claims are bad for MDLs. All MDLs have a significant percentage of claims with no or little basis. The longer those claims stay alive in an MDL, the less the litigants or the public will trust the lawsuit or the overall litigation process.
  3. Dispositive motions can quickly resolve many common issues. Some MDL judges have avoided ruling on early dispositive motions in order to allow discovery to proceed. But good, early rulings (even against a defendant) can actually speed up lawsuits by focusing issues and giving litigants the right incentives to settle.
  4. Focusing on science keeps the facts straight. Mass-tort MDLs face complex scientific questions. The sooner the judge can identify good science to rely on—through informal science days and considered Daubert motions—the better the results for everyone.
  5. Certifying issues for interlocutory appeal creates needed certainty. Nobody wants to hold up litigation for appeals. But MDLs are different: appellate confirmation of a refusal to dismiss claims or a decision to admit an expert can actually speed forward (or get rid of) hundreds or thousands of lawsuits. And appellate courts are likely to expedite appeals with mass effects.
  6. MDL discovery should be a two-way street. Focusing on defendants in discovery is natural. But making sure plaintiffs provide basic information quickly can help weed out junk claims.
  7. Sanctions can help keep a case moving. If particular lawyers (or plaintiffs) don’t respond to discovery, basic sanction orders dismissing claims can motivate those who actually want relief.
  8. Bellwether trials only work if they are representative. Bellwether trials have become one of the key moments in MDL cases, and thus they are plagued with gamesmanship on both sides. Some MDL judges have figured out how to reduce that gamesmanship; other judges would benefit from their experiences.
  9. Good settlements require good information. Settlements go wrong (and get rightly criticized) when they try to take care of meritorious and meritless cases at the same time. Reform efforts often focus on the settlement agreement itself, when taking care of junk claims and missing discovery will actually go further in improving any compromise process.
  10. Remand is not failure. Most mass-tort MDL judges focus on settlement because it can resolve the entire case, even though the MDL statute explicitly considers remand of the case. Steering an MDL toward a successful remand should (and does) reflect better on a judge than overseeing a problematic settlement.

Like in his prior work in class actions, Trask draws extensively on previous scholarship in the area. But, more importantly, he also offers numerous examples from various MDL dockets of judges who successfully employed these principles to cut down on bad claims, move stalled dockets forward, oversee helpful bellwether trials, and successfully resolve numerous mass torts. The ten principles he outlines are a valuable guide for both judges facing overcrowded dockets and the litigators who must appear before them.