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Last week Bexis posted a link to his comment on draft proposed Federal Rule of Civil Procedure 16.1, which deals with multidistrict litigations (MDLs).  If you haven’t read proposed Rule 16.1 and the Bexis comment, you should.  MDLs make up an enormous chunk of the federal civil case population and, at least from the defense perspective, MDLs are sadness machines.  MDLs collect so many cases that they constitute real threats to drug and device defendants, even though a big chunk of that chunk is made up of meritless cases. By meritless, we mean that an appallingly high percentage of the cases do not involve actual usage of the products in question and/or lack plausible evidence of causation. The problem is that those meritless cases are seldom tested in MDLs. They are parked.  Plaintiff attorneys will likely dismiss those cases if they get teed up for actual workups or trial, but more often those cases take up space on court dockets until they are processed for inevitable settlements.  

Defense hacks have for a long time been pleading for vigorous early case vetting, but such pleas have too often fallen on deaf judicial ears.  Draft proposed Rule 16.1 is nice to the extent it offers some sort of rule for MDL management, as opposed to the folklore and mythology that too often govern MDLs, but it turns out to be mostly merely hortatory.  It is less a rule than muttered polite suggestions.  Judges will end up doing whatever they want to do, and sometimes what they will do is precisely nothing —whatever it takes to nudge or shove the parties toward settlement.

But you have heard all of this before.  Perhaps you might dismiss this litany of complaints as defense sour grapes.  If so, you might be interested in a recent law review article: Rave, “Multidistrict Litigation and the Field of Dreams,” 101 Texas L. Rev. 1595 (2023).  Rave interrogates the argument that plaintiffs flood the MDL zone with meritless cases that get swept into a global settlement before they ever get tested, and then tackles the Lenin-ist question of what is to be done.  

The “Field of Dreams” reference comes from the notion that the creation of an MDL prompts the filing of many, many, many more cases — if you build it, they will come. (Yes, in the movie, the line is actually “if you build it, he will come,” referring to Kevin Costner’s father, but don’t sweat it.  After all, precision and accuracy are hardly features of MDLs.) (Rave attributes the MDLs-as-fields-of-dreams analogy to the late Francis McGovern, a Duke law professor who was a giant in the field of aggregated litigation.  We are not suggesting that Rave is wrong about that, but we first heard that turn of phrase during a CLE panel discussion by this blog’s cofounder, Mark Herrmann.  Mark also likened MDLs to roach motels, because cases check in to MDLs, but they don’t check out.  We should mention that it was Mark who drew our attention to the Rave article.)

Rave asks whether the field of dreams phenomenon actually happens in MDLs.  There have been articles and judicial opinions making the case that it does.  But Rave finds the empirical data to be fairly weak.  Nevertheless, he agrees that the economic intuition behind the idea makes sense.  “If you reduce the cost of litigation, as MDL does, more claims with lower expected values will enter the system.”  

Then Rave turns to the question of whether the MDL field of dreams is a problem.  We know what we think about that and we know what our clients think.  It is fine that MDLs offer some efficiencies.  No company wants its employees to be deposed 20 times on the same issues.  But if such efficiency comes at the cost of massive litigation expenses and settlement pressure that approximates extortion, no thanks. Rave is skeptical that settlement pressure in MDLs ever becomes truly coercive.  Put simply, he believes that defendants need not and will not settle truly meritless cases.  To our highly-biased, defense hack eyes, the article at this point evinces a disconnection from reality. Rave does take into account the nefarious anchoring effect of massive case inventories, plus the shifting of the burden of case valuations, as well as publicity considerations.  But he seems insufficiently appreciative of how these sequelae distort the litigation process.  He does not think that litigating the mass more than the tort affects substantive rights.  We respectfully disagree.  Separating the wheat from the chaff is troublesome and expensive.  And that is assuming that the MDL judge will even allow such efforts to be undertaken.

Interestingly, Rave also goes through some of the problems that MDLs might cause plaintiff lawyers. The issues of backlog and delay are obvious enough.  Then there is the issue of differences of approach and case quality among plaintiff lawyers.  We know of some plaintiff lawyers who pride themselves on case selection.  They – mirabile dictu! – want to file cases only if those cases seem strong. Those selective plaintiff lawyers often bemoan responding in the same MDL as less selective plaintiff lawyers who gleefully file (or manage to toll) mountains of junk cases.  The bad cases devalue the (few) good ones.  Rave also points out how MDL procedures reduce the voice and control,of most of the plaintiff lawyers.  The court appointed Plaintiff Steering Committee calls most of the shots.  Indeed, we have heard some plaintiff lawyers complain how, despite having filed many cases in an MDL, they are deprived of power and are periodically instructed by the PSC to wire five and six figure amounts to keep the festivities going.  Perhaps all of that is true.  But we cannot make ourselves weepy-eyed over the travails of plaintiff personal injury lawyers.

What to do about the problems of MDLs?  Since the article does not see the problems as being so bad, and since superior alternatives are not obvious, the article’s answer is predictable and dispiriting: nothing.  The article doubts that early case vetting is necessary or efficient.  Rather, the article sticks to its contention that MDLs reduce litigation costs,and how that is, net-net, a good thing.  The problems associated with too many meritless claims “can be handled through incremental changes in case management techniques (such as a tailored use of plaintiff fact sheets) or defendant self-help (like including claims-eligibility criteria in settlements) without the need for any radical overhauling of MDL procedures.”  The article also suggests that resort to bankruptcy proceedings is unlikely to ameliorate the field of dreams problem (again, assuming it really is a problem).

The Rave article is interesting because it sheds some empirical light on a legal issue normally containing much more heat than light.  It is also reasonably short and very well written. You can easily peruse it between this week’s various navigations of charcuterie boards and punch bowls.  Legal academics usually tilt towards the plaintiff worldview, and there is more than a little of that here. The author does not quite share our dread of MDL asymmetry and settlement meat-grinding.  That said, the article is relatively balanced on the “build it and they will come” issue with respect to MDLs. It acknowledges most of the relevant arguments pro and con.  Being inveterate defense hacks, we must quibble with the article’s failure fully to address the affect of judicial weaponization of the law by MDL judges who measure the success of their administration by forcing settlements.  For that reason, we offer an overall favorable appraisal of the article, even if it is not quite a rave review.