The Mass Torts Scoop

Greenberg Traurig's Pharmaceutical, Medical Device & Health Care Litigation Practice put together this guide for all 50 states outlining products liability personal injury statute of limitations and statute of repose as well as applicability of heeding presumptions and comment K. Click the image to access:

United States Judicial Panel on Multidistrict Litigation

Origin and Purposes

The United States Judicial Panel on Multidistrict Litigation, known informally as the MDL Panel, was created by an Act of Congress in 1968 – 28 U.S.C. §1407.

The job of the Panel is to (1) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and (2) select the judge or judges and court assigned to conduct such proceedings.

The purposes of this transfer or “centralization” process are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary. Transferred actions not terminated in the transferee district are remanded to their originating transferor districts by the Panel at or before the conclusion of centralized pretrial proceedings.

Historical Summary

Since its inception, the Panel has received more than 3,000 motions for centralization, resulting in the creation of more than 1,800 litigation dockets (MDLs) involving over 1.1 million cases. These dockets encompass litigation categories as diverse as airplane crashes; other single accidents, such as train wrecks or hotel fires; mass torts, such as those involving asbestos, drugs and other products liability cases; marketing and sales practices; patent validity and infringement; antitrust price fixing; data security breaches, securities fraud; and employment practices.

Membership of the MDL Panel

The MDL Panel consists of seven sitting federal judges, who are appointed to serve on the Panel by the Chief Justice of the United States. The multidistrict litigation statute provides that no two Panel members may be from the same federal judicial circuit. The current Chair of the Panel is Judge Karen K. Caldwell, who sits in the Eastern District of Kentucky. The remaining Panel members, in order of appointment to Panel are Nathaniel M. Gorton (D. Massachusetts), Matthew F. Kennelly (N.D. Illinois), David C. Norton (D. South Carolina), Roger Benitez (S.D. California), Dale A. Kimball (D. Utah), and Madeline Cox Arleo (D. New Jersey).

Access a list of pending MDLs here: https://www.jpml.uscourts.gov/pending-mdls-0

Multicircuit Petition Statute:  28 U.S.C. § 2112
All notices of multicircuit petitions (MCPs) for review shall encompass exclusively petitions for review
filed in the courts of appeals within 10 days after issuance of an agency order and received by the
affected agency from the petitioners within that 10-day period.

Information for Multicircuit Petition Filers:
Multicircuit Petition Filing Checklist

Access JPML hearing information here: https://www.jpml.uscourts.gov/hearing-information 

A legal proceeding in federal civil litigation, aimed at reducing the burden on federal district courts, and make litigation more convenient for parties and promote overall efficiency in the courts. Congress codified MDLs in 28 U.S.C § 1407. When civil actions in different district courts involve common questions of fact, they may be temporarily consolidated and transferred to a single district court for pretrial proceedings, though they remain separate cases. Parties in a lawsuit can file a motion to transfer to the Judicial Panel on Multidistrict Litigation, which consists of seven circuit and district judges designated by the Chief Justice of the United States. The Panel will decide whether to transfer the case and appoint a transferee judge to oversee the proceedings, based on the location of discovery materials, the convenience of the witnesses, and the location of the majority of actions. The Panel’s selection of the transferee court may be an important factor in the outcome of a case, as some jurisdictions are more plaintiff-friendly or defendant-friendly. The transferee judge will then select a lead counsel to coordinate discovery, though each individual party maintains their private attorney throughout the process.

After discovery and pretrial proceedings, any remaining cases are transferred back to its original district for trial. However, many cases reach global settlements or are disposed of via dismissal or summary judgment before ever reaching that stage. If there are unsettled cases, a transferee judge also may select individual suits for a trial, called a bellwether trial. These trials serve as tests to see how juries will rule on the facts of a case and help the other parties to the MDL assess whether to continue with trial or settle.

The majority of MDLs are antitrust and product liability cases and can sometimes involve several thousand individual lawsuits. Many MDLS resemble class actions but do not obtain class certification under Federal Rules of Civil Procedure 23(a). Multidistrict litigation has continued to grow and now makes up more than 50 percent of the federal civil caseload.

“Among some common misconceptions about MDLs are that most are “mega-cases” and that they linger in the transferee courts for many years. To be sure, some MDLs meet the “mega-case” definition. And others, for various reasons, do remain in the transferee courts for lengthy periods of times. However, most MDLs do not fit either of these descriptions. Only thirty-seven out of about 300 active MDLs comprise more than 100 constituent actions and only ten have more than 1000. By contrast, about one-half of all open MDLs are comprised of ten or fewer actions. And, while it is true that a handful of open MDLs are quite old, there are not many, the number of their actions and claims is dwindling, and there are valid reasons for their continued existence.”

A View from the Panel: Part of the Solution John G. Heyburn II