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What is the process for Multidistrict litigation ?

We have written about the multidistrict litigation (“MDL”) process before but wanted to talk about how the process actually works. The theory behind this process is that an MDL can help federal courts efficiently manage many related cases filed in different jurisdictions. So, instead of many cases pending in different courts across the country, the litigation is coordinated in a single court. This single judge either is, or will become, an expert of both the facts and relevant law.

Why are MDL’s so important if you have a metal on metal hip, IVC filter, talcum powder, Taxotere or other ‘mass tort’ case? Quite simply, this Court has jurisdiction over all pretrial matters in the transferred cases. Therefore, the selection of the Court where the cases end up will affect the outcome of the litigation. The court can dispose of claims completely through dismissal or summary judgment. It controls the pace and scope of discovery and the limits on expert testimony. The attorneys at have learned that there are friendly jurisdictions and not-so-friendly ones. That is why parties sometimes file MDL motions preemptively - to try to steer the case to a ‘receptive’ judge if a transfer seems inevitable. For example, we see corporations trying to steer the case to the jurisdiction where their headquarters are.

So how is an MDL started? To be eligible for an MDL, a group of lawsuits must involve one or more common questions of fact. The Judicial Panel on Multidistrict Litigation, consisting of judges from different circuits, decides by majority vote whether to create an MDL and where to send it. The panel may even find an MDL appropriate, even if no party requests or desires one, if it concludes that transfer will serve "the convenience of parties and witnesses and will promote the just and efficient conduct of such actions."

The panel will consider many factors in ruling on an MDL motion to transfer. These can include geographical convenience for the parties, the current status of the cases, the preference of the parties, the number of cases and the experience and set-up of the court.

There are some disadvantages to an MDL for an inured party aside from the possibility of an ‘unfriendly’ jurisdiction. The defense has learned how to delay as long as possible (and this is bad for people injured by bad drugs or defective medical products). As part of this delay they have learned how to bury the Plaintiff in documents and then file motions to try and kill the whole case.

Another disadvantage is that plaintiffs are losing control of the pace of the trial docket. When all of the cases are filed in front of the same judge, those cases proceed as that judge wants. The ability to jump an excellent case to the front of the line, get a big verdict to the attention of the defense is lost.

Having fewer trials, or even no trials, can eliminate the ability to reveal the sometimes shocking behavior and abuses by corporations.

All in all, many mass tort cases end up in a MDL. But there are options. You should talk to your lawyer about these issues. 

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