By Wes S. Larsen
Have you ever seen a television or internet ad regarding an allegedly dangerous prescription drug or medical device? They often say things like, “If you or a loved one have been injured by [fill in the blank], call us now! You may be entitled to compensation.” While such promises may seem like a law firm’s too-good-to-be-true gimmick, there is likely a good reason why the law firm is spending money to advertise for such cases. And that reason may just be that a mass-tort, class-action-like legal procedure called an “MDL” has been created regarding the advertised product.
What is an MDL?
For starters, the acronym MDL stands for “multi-district litigation,” and it refers to a special federal legal procedure overseen by a federal judicial entity called the Judicial Panel on Multidistrict Litigation (JPML). The purpose of an MDL is to facilitate the streamlined process of handling complex cases, particularly in situations where numerous federal lawsuits are filed in different state courts and/or federal district courts by different individuals regarding the same or similar product of a given manufacturer. In such circumstances, the JPML consolidates the various cases regarding a specific product or type of product into a single MDL and assigns a single federal judge to oversee the MDL.
When the JPML consolidates and assigns a case to a federal judge, all federal cases subject to the MDL are then transferred from the courts of original jurisdiction (i.e., the courts where each plaintiff originally filed their lawsuits) to the MDL court for all further litigation proceedings and discovery. Cases filed in state court are typically removed from state to federal court, then transferred by the federal judges via a “transfer order” to the MDL court.
How does an MDL differ from a class action?
A class action is a single lawsuit in which one of the parties to the lawsuit is a group of people who are represented collectively by a member of that group. Members of the “class” have typically incurred similar or identical damages, and the class action seeks to provide a legal remedy on behalf of all members of the class collectively. For example, if a certain airline charged all customers an extra $10 fee that was later deemed to be improper, then a class action lawsuit could be filed by a single customer of the airline on behalf of all customers to pursue reimbursement of the $10 fee for all.
In contrast, and as discussed above, an MDL is a streamlined grouping of individual lawsuits alleging liability claims against a specific entity(ies), often a product manufacturer, but in which all of the individual lawsuits allege different injuries and/or damages specific to each individual plaintiff. So for example, an MDL related to a certain prescription blood thinner may include many different individual lawsuits in which some plaintiffs allege that the blood thinner caused gastrointestinal bleeding, while others allege the blood thinner caused nose bleeds, and still others allege that it caused cerebral hemorrhaging. The “damages” are therefore different depending on each individual plaintiff, but the allegedly defective product (and hence, manufacturer) are the same. An MDL composed of several individual lawsuits is therefore more appropriate in such a situation, as opposed to a single class action lawsuit.
Good examples of the MDL process are the Vioxx and Chantix MDLs, in both of which our law firm participated. Vioxx was a pain medication manufactured and sold by Merck, and Merck eventually withdrew it from the market. There were many state and federal lawsuits regarding Vioxx filed throughout the United States that were ultimately consolidated and transferred to an MDL. After fierce litigation and “bellwether” trials (explained below), a large global settlement was reached. The funds were distributed pursuant to a matrix negotiated by the court-designated Plaintiff Steering Committee and Merck to qualified plaintiffs. However, not all claimants qualified, as each claimant’s claim was evaluated individually under the court-approved matrix.
Similarly, Chantix was a smoking cessation product that, claimants alleged, did not include necessary disclosures about the potential psychiatric effects of the drug. One of our law firm’s Chantix cases was selected as a bellwether case, which resulted in our firm working with the lead attorneys in that MDL. Pfizer, who manufactured the product, settled thousands of state and federal lawsuits involving Chantix. The terms of the settlement are confidential. Again some, but not all, claimants were compensated under the terms of that court-approved settlement program.
It is important to note that, in these and nearly all MDL cases, it is unclear at the outset which individual plaintiffs will qualify for compensation in the MDL. There is a sorting process that occurs whereby some cases are disqualified by judicial ruling or settlement terms negotiated by the court-appointed Plaintiff Steering Committee and the defendant company(ies). The cases that do qualify often include a matrix-type settlement that treats categories of plaintiffs differently based on the facts in each individual claimant’s case.
How are individual cases included in an MDL?
Once the JPML rules on consolidation and assignment (in other words, creates an MDL regarding a specific product), subsequent related individual cases are typically allowed or required to be filed directly into the MDL regardless of the state of original jurisdiction or the licensure of the attorney (i.e., the MDL judge usually grants “pro hac vice” status to all otherwise eligible attorneys for purposes of filing lawsuits directly into the MDL, which eliminates the need for local counsel). For example, regarding the Vioxx cases handled by our firm, we filed the first two cases in state court. Merck removed both cases to the United States District Court for the District of Idaho, where the Idaho federal judge transferred them pursuant to a JPML “transfer order” to the Vioxx MDL in the Eastern District of Louisiana overseen by the Honorable Judge Eldon E. Fallon. Following Judge Fallon’s instructions, our firm filed subsequent Vioxx cases directly in the MDL in the Eastern District of Louisiana, without needing to file the cases in local state or federal court first.
If a case is not dismissed or settled while a part of the MDL, then it simply gets transferred back to the court of original jurisdiction for trial. For the purpose of the statute of limitations (i.e., the deadline for filing a particular case), the date of the original filing of the case is used; thus, when a case is transferred back to the federal or state court, it proceeds as if filed in that court on the original date filed (not the date transferred). All cases in the MDL are viewed collectively, but filed and evaluated individually; this is a key way in which MDLs are different from class action lawsuits.
Given the seeming complexity of MDLs, why would you want to file your individual products liability injury case in an MDL?
There are many benefits available to a plaintiff who files their case in an MDL with potentially thousands of other similarly-situated claimants, as opposed to filing their case individually in the local federal/state court:
- There is strength in numbers. The numerous plaintiffs and their attorneys joined together create a powerful group in litigation. The MDL thus “evens the playing field” between individual claimants and a corporate giant defendant.
- An MDL allows for uniformity in how all related cases are handled, and streamlines the litigation and discovery processes. It allows access to collective litigation resources, defense discovery responses, and highly qualified expert witnesses.
- An MDL provides all claimants with a highly skilled, “second layer” of legal counsel. As referenced above, the MDL judge typically assigns a group of highly experienced plaintiffs’ attorneys to the “Plaintiff Steering Committee” (PSC). This group takes the lead in all issues related to the MDL litigation—strategy, case coordination, hiring of experts, determining global cost expenditures, and ultimately settlement terms. The PSC uses combined resources to obtain the very best experts and evidence possible on behalf of all the plaintiffs in an effort to concretely demonstrate the fallibility of the product at issue. Resources are pooled by all plaintiff attorneys in the case to exercise strength in numbers, and general costs are shared equally (the MDL court typically mandates that a portion of attorney fees in each individual case be withheld as part of a Common Benefit Fund managed by the PSC).
- An MDL exponentially reduces the costs for individual claimants. Each qualifying plaintiff is assessed a modest, fractional share of the case costs, such as the cost for experts on liability, causation, and damages. Conversely, an individual case standing alone in state or federal court is often overwhelmed with case costs, teams of defense attorneys, and endless litigation.
Our firm, James, Vernon & Weeks, P.A., handles highly complex cases in state court, federal court, bankruptcy courts, and the MDL courts. It is our universal experience that if an individual case might meet the requirements for an MDL, it is advisable to file it in the MDL in hopes that it qualifies and enjoys all these benefits—access to highly skilled, national legal counsel; access to the best experts; exponentially reduced costs; and the power of numbers. At worst, if a case is deemed by the MDL court to not fit within the specific parameters of the MDL, the case is simply transferred back to the court of original jurisdiction for individual case litigation. The upsides to potentially qualifying for an MDL, in our experience, far outweigh the downsides. Indeed, in many individual cases the crushing costs and unlevel playing field of the individual vs. the corporate giant make the case not economically feasible standing alone.
Characteristically, once initial discovery and expert witness issues are resolved in the MDL, the court then selects a handful of individual cases to proceed to trial (these are known as “bellwether” cases, as referenced above). This allows all other plaintiffs in the MDL to observe how a jury views these cases, and how a jury might view their own individual case if a trial were to occur. Following the bellwether process and depending on the outcome of the bellwether trials, the ultimate goal from the plaintiffs’ perspective is for the defendant manufacturer to recognize its vulnerability and present a court-approved settlement program into which all claims in the MDL can be filed, evaluated, and resolved on an individual basis.
What are the procedural benefits of filing into an MDL?
There are several other benefits available to plaintiffs who file their individual cases into an MDL. First, the same judge oversees all cases in the MDL. This allows for continuity in how all the cases are handled and how all court decisions are carried out. The judge also typically approves a master complaint proposed by the PSC on behalf of all plaintiffs, followed by a “short form complaint” which each plaintiff files regarding their individual claims. The court likewise approves a standard set of discovery to be completed by all plaintiffs and defendants in the MDL (typically designated as the plaintiff fact sheet and/or plaintiff profile sheet); this avoids the difficulties presented in individual, non-MDL federal and state court cases regarding overburdensome and irrelevant discovery requests. Through the use of pretrial orders, the MDL court typically sets out a schedule mandating when discovery responses are due in relation to the filing of the short form complaint. This eliminates discovery timeline disputes and delays created by late responses and objections filed by the parties. If the court later determines that additional discovery should occur in a particular case or group of cases, the court typically issues a pre-trial order to that effect.
The overall desire of MDL plaintiffs and their counsel is for proposal of a fair and well-governed settlement program that leads to suitable compensation for each individual plaintiff. However, once a plaintiff files their lawsuit into the MDL and submits all required discovery, they enter an indeterminate waiting period while the two steering committees work through litigation issues and proceed with bellwether trials. This waiting period typically lasts until either a settlement program is announced or until the court transfers all cases back to their respective courts of original jurisdiction for trial. Depending on when an individual plaintiff files their case in relation to how long the MDL has been “open,” this waiting period can be as short as a few months or as long as several years. In the event a settlement program is negotiated and proposed by the two steering committees and approved by the court, each individual case must be registered and enrolled into the program by court-mandated deadlines. The court usually assigns a neutral third-party entity to serve as claims reviewer, guided by a court-approved master settlement agreement.
If at any time an MDL court determines that a specific case filed into the MDL would be better-heard elsewhere because of issues unique to that case, the court typically does not dismiss the case – even if a defendant brings an FRCP 12(c) motion to dismiss. Instead, the MDL court either transfers the case back to the court of original jurisdiction for further proceedings, or else transfers it to another MDL which might serve as a better venue.
How can we help with your MDL case?
Our law firm has been involved in numerous MDLs over the past two decades in federal venues throughout the United States. Our attorneys have attended JPML consolidation and assignment hearings. We have worked with many plaintiff steering committees, and at least one of our cases has been selected as a bellwether case.
When we receive a new products liability intake, we first evaluate whether an MDL has been created regarding the product or class of products at issue. If a potentially-related MDL does exist, we work with our client to obtain the necessary information and documentation to file their claim in the MDL. We have found that the potential benefits to our clients facilitated by including their cases in an MDL, even if the product causing their injury is only similar to but not specifically implicated in the MDL, are by and large greater than those available through individual case litigation. There are also far fewer risks associated with MDL litigation as opposed to individual case litigation, including those referenced above and the general non-applicability of state procedural law.
So, without intentionally quoting the sometimes-cheesy television commercials referenced above, if you or one of your loved ones has been injured by a medical device or prescription drug, don’t hesitate to call us. We are happy to review your case and investigate whether an applicable MDL exists. And because nearly all MDLs allow for direct filing and pro hac vice admission, our law firm is equipped to handle products liability injury cases no matter where the injury occurred or where the MDL is located. So please, give us a call today at (888) 667-0683 or fill out our online contact form so we can evaluate your case.