A multidistrict litigation (MDL) can be a sound way of managing a mass tort. Efficiencies are available (e.g., deposing company witnesses only once) and the U. of Chicago part of us dreams of economies of scale. Then again, an MDL can be vexing, as plaintiff lawyers park their weak cases in the MDL and find ways to push their relatively few strong cases up front. Think of the MDL as a vast kennel, with all of the associated dangers and bad smells. Then again, an MDL can be an out-and-out disaster, as the old If-you-build-it-they-will-come model oft-described by blogger emeritus Mark Herrmann takes hold. The very existence of the MDL itself makes the mass tort massive. The MDL becomes a magnet for the meritless. Plaintiff lawyers resist any discovery of individual cases – there are too many! – and insist on dedicating the MDL to endless discovery of company conduct, as that is common to all cases and, viewed through the MDL lens, is always proportional, no matter how intrusive or expensive. (At least that is the plaintiff argument. But now some courts have finally grown weary of MDLs becoming festivals of discovery about discovery, and decided that proportionality applies even when the MDL case inventory has reached four or five digits. See here, for example.)
We have gone through this evolution of thought in the course of a single MDL, watching good intentions morph into an extortion racket. We have also seen courts gradually catch on to what has gone wrong with the MDL system. Is this an instance of phylogeny recapitulating ontogeny? Legislation has been revived in Congress that aims to cabin the insanity of MDLs and class actions. And, mirabile dictu, some MDL judges have started to rein in asymmetrical discovery and have even demanded that plaintiff lawyers furnish evidence of such niceties as usage of the product and medical causation. We’re not saying let’s make MDLs great again, but can we at least make them less miserable? Or maybe just make them less. Perhaps we don’t need an MDL every time there’s an alarming study or an uptick in adverse events.