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What is Multi-District Litigation (MDLs)?

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:

  1. 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.
  2. 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.
  3. 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).
  4. 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.

 

Leander James helps survivors reclaim power through the Rochester Archdiocese mediation program

Leander James, of James, Vernon & Weeks, P.A. spoke with WHEC news in Rochester, NY while attending hearings for several clients in the Rochester Archdiocese mediation program. The program, which is entirely voluntary, gives survivors of abuse the opportunity to have their claims heard in a non-litigation setting. Claimants can choose to accept the award given by the mediator or continue to pursue their claims in court. “Through a confidential process,” James said, “It gives these folks a forum to confidentially talk about what happened to them and, in doing so, I can tell you that the survivors of sexual abuse really reclaim their power.” For more information, see https://www.whec.com/news/special-mediator-seeks-to-deliver-justice-in-church-sex-abuse-cases/5211512/?cat=565

Prominent Catholic Cardinal Suspended from Ministry for Sexually Abusing a Child in New York

The Roman Catholic Archdiocese of New York issued a statement today that Cardinal Theodore E. McCarrick, the former Archbishop of Washington, has been credibly accused of sexually abusing a teen 45 years ago while serving as a priest in New York. This announcement comes following a thorough investigation by an independent forensic agency at the direction of law enforcement. Results were provided to the Archdiocesan Review Board, which found the allegations to be credible and substantiated.

Leander “Lee” James and Craig Vernon of James, Vernon & Weeks, P.A., together with Patrick Noaker of Noaker Law Firm, LLC, represent the now-grown victim who was abused by Cardinal McCarrick as a boy. The victim alleges abuse by McCarrick on two occasions, once in 1971 and again in 1972. Both instances occurred at St. Patrick’s Cathedral in New York.

The first instance of molestation occurred while the victim, who was an altar boy, was being fitted for a cassock for Christmas Mass. According to Attorney Noaker, “McCarrick started measuring him, then he unzipped his pants, stuck his hand in and grabbed his genitals.” The 16-year-old boy struggled with the priest and eventually pushed him away, following which McCarrick commanded him not to tell anyone about the molestation. A second incident of abuse occurred the following Christmastime when McCarrick confronted the same boy in a bathroom and stuck his hands down the boy’s pants.

Attorney Lee James commented, “We work hard to seek justice and accountability on behalf of individuals sexually abused by those in authority. These survivors of abuse, including our client who came forward against Cardinal McCarrick, are incredibly brave in the face of great opposition.”

The victim came forward and reported the abuse to church officials early this year, and testified before a church panel in April 2018. “He knows who the powerful people are here,” Noaker said. “That’s one reason it took him so long to come forward. But he feels good that people believed him.” The victim wishes to remain anonymous as he processes the news of Cardinal McCarrick’s removal.

Pope Francis ordered that the 87-year-old cardinal be removed pending further action that could end in his expulsion from the priesthood. Cardinal McCarrick is the highest-ranking American Roman Catholic leader to be credibly accused of child sexual abuse since the early 1990’s. “This shows you how broken the system is,” Noaker stated. “You don’t go higher than cardinal unless you’re Pope.”

The official statement by Cardinal Timothy Dolan, Archbishop of New York, is available here.

You can read more about this issue here:

https://www.nytimes.com/2018/06/20/us/theodore-mccarrick-sex-abuse.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news

http://www.nydailynews.com/news/ny-metro-cardinal-mccarrick-removed-ministry-allegation-sex-abuse-20180620-story.html

https://www.wsj.com/articles/sexual-abuse-allegation-against-cardinal-found-credible-1529506643?mod=searchresults&page=1&pos=1

https://www.cnn.com/2018/06/20/politics/theodore-mccarrick-washington-abuse-allegation/index.html

http://www.foxnews.com/us/2018/06/20/cardinal-mccarrick-ex-archbishop-hit-with-abuse-claim.html

JVW attorneys pleased to announce significant settlement against Diocese of Great Falls

JVW attorneys pleased to announce significant settlement against Diocese of Great Falls which achieves monetary compensation for their clients who survived sexual assault as children as well as important non-monetary considerations.

Read more about these stories here:

https://www.nytimes.com/aponline/2018/04/27/us/ap-us-church-abuse-montana.html

https://www.msn.com/en-us/news/us/montana-diocese-reaches-2420m-settlement-with-abuse-victims/ar-AAwqRg1

Recent lawsuit filed against LDS Church seeks justice and important policy change

Recent lawsuit seeks justice and important policy change to make LDS Church safer for those susceptible to sexual assault by leaders. Read more about these developments here:

https://www.huffingtonpost.com/entry/mckenna-denson-mormon-church-abuse-lawsuit_us_5ac68734e4b0337ad1e5f7f1

https://www.sltrib.com/news/2018/04/05/woman-accusing-missionary-training-center-president-of-rape-stands-in-front-of-cameras-to-say-she-is-a-victim/

April 30, 2018 Claims Deadline Approaching for Rockville Centre (NY) Abuse Victims

(Long Island, New York – April 9, 2018) For clergy sex abuse survivors from Long Island, New York, now is the time to come forward.

It’s important to act now and not delay to meet the April 30, 2018 filing deadline to file a claim.

The Roman Catholic Diocese of Rockville Centre, New York, one of the largest Catholic dioceses in the country, has established an “Independent Reconciliation and Compensation” program to review claims of past clergy sexual abuse of minors and to pay the victims, no matter when the abuse occurred. Eligible claims will be paid within 60 days from the time that a claim is submitted, deemed eligible and the compensation is determined and accepted.

Unlike other dioceses across the country that have had the courts oversee the handling of abuse claims, the Rockville Centre diocese, like the Archdiocese of New York, has established a confidential process with an independent administrator to review claims. April 30th is the current deadline, after which abuse claims could be barred from further consideration.

To date, 51 credibly accused clergy from the Diocese of Rockville Centre have been identified as abusers. (See below: a list of abusers.)

Any person wishing to file a new claim alleging sexual abuse not previously reported to the diocese should register with the Rockville Centre Diocese. This information is confidential but will be shared with a local district attorney’s office and reviewed by the diocese.

The Rockville Centre diocese is the sixth-largest Catholic diocese in the United States, serving approximately 1.5 million people in 134 parishes. The diocese represents church members from Nassau and Suffolk counties in Long Island.

“When you have a trail of abuse spanning decades, it’s important to help victims and address these injuries,” said Leander James, an attorney representing victims.

Rockville Centre Bishop John Oliver Barres has vowed in a statement earlier this year that the claims review process is credible and is an important step in restoring trust and ensuring the safety of children: “We stand in solidarity with our survivors and their families, and we continue our commitment and vigilance to the protection of children. …”

If you have been abused or have information about someone you know who has been abused, contact: childsexualabuse.org or call 888-961-6038 to speak with an attorney representing victims. Lawyers Helping Survivors of Child Sexual Abuse is a national team of attorneys helping victims and ensuring their interests are represented in the process.

For further reading/list of accused abusers, view the report here.

Hidden Disgrace II: Rockville Center Diocese

Lawyers Helping Survivors of Child Sex Abuse, a national team of attorneys dedicated to representing victims of sexual abuse that James, Vernon & Weeks, P.A., is proud to serve with, just released a new report entitled Hidden Disgrace II.

51 alleged pedophiles who are associated with the diocese within the Diocese of Rockville Centre were identified in this particular report. Each entry brings with it the name of each of the alleged pedophiles, the date they were ordained, their current status, a list of allegations, and an index of their previous (and current, if applicable) assignments.

Abuse within this particular report is considered as any contact of a sexual nature with a minor. It includes Diocesan and non-Diocesan priests and church employees accused of abuse who worked in at least one church or school in the Rockville Center Diocese.

Patrick Noaker, a fellow member of Lawyers Helping Survivors of Child Sex Abuse, is quoted as saying, “We believe only 10 percent of those who have been sexually abused by priests on Long Island have come forward.”

Despite the morbidity of the statement, it’s for this reason that James, Vernon & Weeks, P.A., joins with LHSCSA – many are out there that have yet to speak up. Speaking up takes courage and strength, and we are here to help. By assisting in the release of this report, we aim to help raise awareness of the prevalence of these crimes and help the unfortunate victims of them reclaim their voices and seek justice.

You can view the report here.

News 12 Long Island’s story available here.

Rockville Centre Patch article available here.

We encourage survivors to get in touch with us to find out more about what we may possibly be able to do to help. While we can’t undo the fact that it happened, we guarantee we will stick by your side until justice is sought.

Montana Abuse on Reservations

Tremendous article shines a spotlight on the epidemic of abuse on Montana reservations by predatory priests.  Read the article here.

Lee James and Craig Vernon of James, Vernon and Weeks, P.A. have represented hundreds of survivors who were abused as children on Montana reservations. These lawsuits include the cases against the Northwest Jesuits as discussed in this New York Times article, the Diocese of Helena, and as co-counsel with the Missoula law firm of Datsopoulous, MacDonald and Lind in the current bankruptcy involving the Diocese of Great Falls-Billings.

Additional lawsuits filed against LDS Church alleging sex abuse in Navajo program

JVW is proud to represent three additional survivors of child sexual abuse in the Mormon Indian Student Placement Program.   Three new lawsuits show the expanse of this program.    Two of our brave clients were taken off the Navajo Reservation where one was abused with her Utah family and the other abused with her Arizona family.   A third client was taken off the Crow Reservation, placed in a Wenatchee, Washington home, where she was also sexually abused. These articles discuss these recent lawsuits and Craig Vernon’s impressions about these cases.

https://www.usnews.com/news/best-states/arizona/articles/2017-08-15/new-lawsuits-allege-mormon-church-failed-to-protect-children

http://www.sltrib.com/religion/local/2017/08/16/new-lawsuits-say-mormon-church-failed-to-protect-american-indian-children/

http://www.seattletimes.com/nation-world/new-lawsuits-allege-mormon-church-failed-to-protect-children/

Victim of Serial Pedophile Files Lawsuit Against Boston Archdiocese

Survivor Was Repeatedly Abused by Brother Tony Holmes While Living at the Nazareth Child Care Center in Jamaica Plain

Andre Jones with attorneys Patrick Noaker, Kim Dougherty, Jerry Kristal and Craig Vernon at News Conference in Boston, MA July 17, 2017

On July 17, 2016 Andre Jones filed a lawsuit against the Archdiocese of Boston for abuse he suffered while living at the Archdiocese’s Nazareth Child Care Center in Jamaica Plain. The lawsuit outlines sexual abuse allegations against Brother Edward Anthony “Tony” Holmes, a now-convicted pedophile who worked at Nazareth and who preyed on at least two other children there.   The lawsuit was filed in Suffolk County Superior Court by Lawyers Helping Survivors of Child Sex Abuse, which includes James, Vernon & Weeks P.A. attorneys, Craig Vernon and Leander James.

Andre Jones 1973

Read more here:

http://www.chron.com/news/crime/article/Man-sues-archdiocese-cites-sex-abuse-by-priest-11294514.php

https://www.washingtonpost.com/national/religion/man-sues-archdiocese-cites-sex-abuse-by-priest-at-orphanage/2017/07/17/f3e2418e-6b28-11e7-abbc-a53480672286_story.html?utm_term=.8bd3a2a5ba14

http://www.seattletimes.com/nation-world/man-sues-archdiocese-cites-sex-abuse-by-priest-at-orphanage/

http://www.dailyjournal.net/2017/07/17/us-church-abuse-lawsuit/

https://www.bostonglobe.com/metro/2017/07/17/victim-child-sexual-assault-sues-boston-archdiocese/RgsSrWrGk98fvG9Mcetd0H/story.html

http://www.nydailynews.com/newswires/new-york/man-sues-boston-archdiocese-citing-sex-abuse-orphanage-article-1.3333059?cid=bitly