Special Focus: Product Liability

The case of In re 3M Combat Earplug Products Liability Litigation in the U.S. District Court for the Northern District of Florida, MDL-2885, with close to 230,000 actions pending has now grown to be the largest MDL in history.1 The 3M case has surpassed the asbestos MDL, MDL-875, and is now a magnitude larger than the Johnson & Johnson talc products cases that have 30,000 plaintiffs.2 As noted, cumulative MDL cases have risen from 750,000 to over a million cases between 2020 and 2021.3 Surpassing the size of the asbestos MDL (MDL-875) is no small feat, as that MDL had over 180,000 cases and more than 10 million claims as U.S. District Judge Eduardo C. Robreno noted in “The Federal Asbestos Product Liability Multidistrict Litigation (MDL-85): Black Hole or New Paradigm?” 98 Widener Law Journal 97 (2013). With the rise of MDL litigation, there are pros and cons to this litigation the rise of this litigation will likely draw increased scrutiny as the rise continues.

Congress enacted codified multidistrict litigation (MDL) in 1968 when it passed 28 U.S.C. § 1407. It states, in part, “When civil actions involving one or more common questions of facts are pending in different districts, such actions may be transferred to any district for coordinated or consolidate pretrial proceedings.” These cases often involve products liability cases, where a drug or medical device or defective product is involved in a large number of lawsuits. The MDL only handles the pretrial and discovery phase of the trial. If the case does not settle or is dismissed during the MDL, then is it sent back to its original court for trial.

The law was designed to reduce the burden on federal district courts and to make litigation more convenient for parties and promote overall efficiency in the courts. The theory is that by consolidating the discovery proceedings and pretrial motions because the cases all have common questions of fact, all parties save time and money through the process. This also allows one judge to oversee all of the litigation and provide consistency. An MDL is different than a class action, where there is a group of plaintiffs that are part of a single case, with a single lawyer or team of lawyers, presenting one case to the one jury.

The United States Judicial Panel on Multidistrict Litigation maintains a website that provides statistics on all active MDLs.4 MDLs now represent more than 50 percent of the federal civil docket. Of that total, more than 30 percent of MDLs are products liability cases. Delving further into the numbers, the majority of those cases involve pharmaceutical products and/or medical devices, making MDLs of particular relevance to a product liability practitioner.

The benefit for plaintiffs in MDLs is that plaintiffs’ attorneys can pool resources and coordinate their efforts. The benefit for defendants is that it is usually more cost effective and easier to litigate these cases as groups as opposed to cross-country litigation. For both parties, these cases are more efficient because the witnesses only need to be deposed one time, motions only need to be argued one time, and there is a single judge overseeing the proceeding. This reduces forum shopping and the risk of inconsistent results with little ability to predict the outcome of each case. On the other hand, one of the biggest detriments to both parties is publicity, which is a double-edged sword in the MDL context. As these cases swell in size, they take on a life of their own. More plaintiffs come forward, which lead to more damages. However, with the possibility of more damages, more frivolous litigants come forward seeking to capitalize on the cases. These individuals waste resources as each side has to weed them out of the litigation. Over a third of the cases filed in an MDL turn out to be unsupportable and this is usually only determined at the settlement stage.5

To gauge the litigation, an MDL will usually begin with a bellwether trial. The parties will select test cases in an attempt to see how the litigation may resolve. The bellwether trial is typically chosen as a typical representative of the larger group of litigants in the MDL. The benefit of bellwether trials is that they give both parties an early understanding of the strengths and weakness of the cases. This promotes settlement and also allows the parties to see the costs and burden that will inhere in subsequent litigation. While these trials are good predictors of how the litigation may proceed, they are merely representative of the issues and likely outcomes. Each case will still succeed or fail on its own merits.

A state court case needs to be removed to a federal court before it can be transferred into an MDL, albeit temporarily if the case does not resolve. A corporate defendant chooses their own attorney, but the hundreds or thousands of plaintiffs have their attorneys selected by the presiding judge. These leadership positions of an MDL can be very demanding and time consuming. It is important to keep in mind, when considering entering an MDL that your client will want to talk to you, not to the leadership of the MDL. You will have to stay updated as to the status of the MDL, even if you are not involved with—or even disagree with—the arguments being made by attorneys for the plaintiffs. MDL litigation should not be entered into lightly and, for the uninitiated, can be a daunting task. Consult attorneys who are experienced in this work for guidance or, if you simply do not have the time or resources to get involved, refer the potential client to someone who does work with MDLs. While MDLs can be a benefit for the plaintiffs, proper consideration should still be taken before entering one. Product liability cases can have merit on their own and may not necessarily benefit from being grouped in with other cases where the damages are not significant. If the current supersized MDLs are a sign of things to come, MDLs will only continue to grow in size and popularity.

Michelle Hyer is an EAGLE member at the Law Offices of James S. Rogers. She is a current member of the WSAJ Trial News editorial board and WSAJ membership committee. Michelle currently engages in MDL litigation.

1 “How 3M earplug litigation got to be biggest MDL in History,” April 2, 2021, Rueters Legal by Brendan Pierson.
2 Id.
3 Id.
4 https://www.jpml.uscourts.gov/jpml/files/Pending_MDL_Dockets_By_District-April-15-2021.pdf.
5 Advisory Committee Rules of Civil Procedure, MDL Subcommittee Report, Nov. 1, 2018, at 142. See also, Moorthy, “Gumming Up the Works,” supra.

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