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What Is an MDL Class Action?
You are in an MDL but you do not understand what it is. You are not alone. Few people and even few lawyers understand what an MDL really is and how it works. Yet an incredible one-third of all federal lawsuits are in an MDL.
We call an MDL a "sort of" class action. Because that is what an MDL lawsuit is. A classic "class action" lawsuit is one in which a group of people have been injured by the same parties under similar facts. Sometimes, many people have been injured or killed by negligence that has common threads regarding how the injuries occurred, but the victims have very different types of injuries.
In an MDL, there is not a single trial that resolves all of the cases but the case is consolidated under one federal judge who handles all of the discovery matters that are common to all of the defendants. Using the 3M defective earplug class action as an example, there would be written discovery to 3M, witnesses will be deposed from 3M, the military, and relevant medical experts.
The MDL will even conduct what are called de bene esse deposition (or trial deposition), in which witnesses give testimony by videotape. This testimony can be played by video at trial in any case involving these defective earplugs. The witnesses' testimony has the same value as if the witnesses were testifying live in front of the jury at trial.
- Answers to your questions about the MDL process and how it impacts your case
These are the six MDLs our lawyers are most focused on in 2021.
- NEC Baby Formula MDL (pending)
- Zantac MDL
- 3M Earplug MDL
- Hernia Mesh MDLs
- New Paraquat MDL (there is a motion pending)
- Paragard MDL
- Elmiron MDL
Why Do We Have MDLs?
The efficiencies of consolidating cases in the MDL often have the greatest impact on the effort required to gather and review all of the relevant documents in the case. In large drug and medical device litigation, there will usually be millions of records sought and produced to the plaintiffs’ lawyers.
The pharmaceutical companies want to avoid the costs of providing the documents to each plaintiff’s lawyer and the plaintiffs’ lawyers similarly do not wish to take on the effort alone. The MDL allows a mechanism for both sides to accomplish this onerous task in a cost-effective way. It is the rare win-win in the zero sum world of litigation.
The MDL provides the tools in these class action type cases for plaintiffs’ lawyers to try a case on the defendant’s liability with little or no work on their part because that part of the case has been largely completed for them. What these lawyers still have to develop – and what is often the most difficult part of the case – is the causation case, i.e., did the defendant’s negligence cause the plaintiff’s injuries.
What Is a Bellwether Trial?
In mass tort cases with large numbers of victims, the MDL judge will often select a group of what we call "bellwether plaintiffs" for initial trials. These trials are needed because the failure to reach a settlement in a case means that the parties have a fundamental disagreement about the relative strengths and weaknesses of their allegations or defenses. The thinking is that a few trials help clear up the value of the cases. This gets both sides in multidistrict litigation -- particularly the more intransigent one -- to look at their case more realistically.
Will My MDL Case Go to Trial?
Statistically, the answer is a resounding no. Few MDL lawsuits got to trial. Usually, the cases either reach a global settlement or, in some cases where the claims are lacking in merit, they are dismissed.
How Much Are MDL Settlement Amounts?
Victim compensation an MDL can run over $1 million for some victims. But most MDL class action settlement amounts are less than what you would expect if you prevailed at trial. Much less. Some lawyers advocate staying out of the MDL settlement and trying your case because the compromise settlement is sometimes far from full compensation for the injury or death.
What Is and MDL Census Registry and How Might It Help Me?
An MDL census registry is a device used in MDL class actions to allow plaintiffs to register their claims with a third-party claims administrator without filing a lawsuit. The benefit for a plaintiff is that it tolls the running of the statute of limitations without having move the case forward or even pay the cost of filing the lawsuit. This third party administrator helps get the relevant information to the case, typically the plaintiff's medical records and/or history of product use.
In many MDL class actions, the census regristry allow the plaintiff to sit and do nothing and wait for a settlement check while the defendant is able to get the proof that the plaintff meet the eligiblity requirments for the case.
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- Andrew D. Bradt, Radical Proposal: The Multidistrict Litigation Act of 1968, 165 U. Pa. L. Rev. 831 (2017).
- Eldon E. Fallon, et al: Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323, 2325, 2337–40, 2342 (2008).
- In re Farmers Ins. Overtime Pay Litigation, 300 F. Supp. 2d 1020 (D. Or. 2003) (MDL judge ordinarily transfers cases sat the conclusion of pretrial proceedings but, if all parties agree, the MDL judge can try cases - which has become the norm).
- In re Factor VIII or IX Concentrate Blood Products, 169 F.R.D. 632 (N.D. Ill. 1996) (MDL discovery should relate to issues relevant to all or at least most plaintiffs).
