Many of the lawsuits prominent in today’s headlines—the ones concerning opioids, talc, NFL concussions and many pharmaceutical products—are part of a 50-year-old experiment in legal procedure known as multidistrict litigation whose vital signs are now flashing an immediate need for intensive care.
Multidistrict litigation was created by Congress in 1968 to facilitate “consolidation for pretrial purposes” when multiple cases concerning the same issues were filed in different courts around the country. It was, and still remains, a worthy goal to provide efficiency and uniformity in the management of discovery and other pretrial matters in such cases before sending them back for trial in the courts where they were filed.
Lawsuits consolidated into MDL cases now constitute about 47 percent of the federal civil docket. This trend is accelerating; the number of such cases has tripled in the last 15 years. So has the size of cases—24 current MDLs have over 1,000 plaintiffs each, and the largest have well over 10,000.
As general counsel of Eli Lilly and Co., I have participated in a number of MDLs over the years and have had both positive and negative experiences with the process. Increasingly, however, as MDLs have become less and less tethered to widely accepted principles of procedural fairness, I am finding it much more difficult to support MDL consolidation. The reasons should be alarming to anyone concerned about the rule of law.
Many MDLs today—particularly those in the products liability category—are defined by a lack of clear, fair and predictable procedural rules. This should be startling to American lawyers because, since 1938, litigation procedure in U.S. courts has been generally well defined by the Federal Rules of Civil Procedure (FRCP), which are firmly established and widely accepted as providing the structure of litigation and the necessary protections to the parties.
Because of the FRCP, any lawyer in a federal court knows a great deal about how their case will proceed, including what kind of discovery information they can request from the other side, what types of motions will be allowed and what standards the court will apply to ensure compliance with the rules. But MDL cases are often quite different. Despite Rule 1’s admonition that the FRCP govern “all civil actions and proceedings,” it is well known that a perceived “MDL exception” to the FRCP means these cases are often subject to ad hoc administrative instructions that are frequently one-sided.
In many instances, it is understandable that MDL judges deviate from the FRCP because some of its key provisions are impractical or impossible to apply in cases with thousands of plaintiffs. Fortunately, the Civil Rules Advisory Committee, which is responsible to ensure the integrity and functionality of the FRCP, is undertaking a thorough examination of MDL practices with an eye toward the possibility of amending the FRCP. I am optimistic they will take the much-needed action to save the patient.
Three of the most important reforms before the committee concern the early vetting of claims, appellate review of key rulings and required disclosure of nonparties to litigation who obtain financial interests in litigation whose value is contingent upon the outcome.
Early vetting of claims is critical to the integrity of judicial process. The FRCP contain standards and procedures for testing the validity of claims before trial because it is unjust and inefficient to allow meritless claims to languish and clog court dockets. Unfortunately, the failure to adapt those rules to MDL cases is causing an overwhelming crush of meritless claims—perhaps 30 to 40 percent, or even higher. The large number of meritless claims distorts perceptions of the value and complexity of MDL cases, hindering resolution, and results in an “if you build it they will come” phenomenon in which a large number of claims draws even more pile-on filings by lawyers hoping for a settlement regardless of the merits. Judge Clay Land, who serves on the federal bench in Georgia, put it like this: “the evolution of the MDL process toward providing an alternative dispute resolution forum for global settlements has produced incentives for the filing of cases that otherwise would not be filed if they had to stand on their own merit as a stand-alone action.”
Appellate review is almost nonexistent in MDL cases despite the fact that a single ruling by one judge can affect thousands of plaintiffs whose rights are at stake and cause an enormous economic consequence to defendants. Amending the FRCP to allow appeals of key motions would serve the same fundamental purpose in MDL cases as in other cases: ensuring a just and consistent result, giving parties confidence that the issues have been fully heard, and providing guidance to future parties and courts. It would also facilitate timely case resolution in many instances by delivering a final answer on disputed issues before enormous time and resources are spent on trials.
Finally, it is very important for the FRCP to require disclosure of non-parties to lawsuits who make investments in litigation in exchange for a return that is contingent on the outcome. Third-party litigation funding is skyrocketing, and it inherently raises questions that courts and parties need to understand. Everyone involved in litigation needs to know who is “in the courtroom” for reasons including compliance with ethical obligations, administering rules and sanctions appropriately and fairness in understanding settlement dynamics. Disclosure should be required in all cases, not just MDLs, even though the massive infusions of third-party funds is most notable in MDL cases right now. No doubt, anyone unlucky enough to find themselves sued by a neighbor would have a keen interested in knowing whether a hedge fund is footing the bill and expecting a healthy return on investment.
These reforms, along with a handful of additional ideas that the Civil Rules Advisory Committee is considering, should be written into the FRCP so they are accessible and transparent to all stakeholders in litigation. Doing so would deliver the intensive care that the MDL process needs in order to live into the future.
Michael J. Harrington is senior vice president and general counsel for Eli Lilly and Co. He serves on the boards of the National Center for State Courts and Leadership Council for Legal Diversity, and is a member of Lawyers for Civil Justice.