MDL Class Action Frequently Asked Questions
What is a Class Action Lawsuit?
Class action lawsuits allow attorneys to fight for a large group of people who have suffered harm but the same individual, company, or group of defendants. A pure class action would involve a lawsuit where all of the victims are moving towards a single trial with the defendants. Few mass tort drug or medical device cases are pure class action claims. Instead, they use a type of class action called an MDL.
What is a Multi-District Litigation (MDL)?
The MDL mechanism gives a designated panel of federal judges the ability to transfer cases with “common questions of fact” to a single federal judge “for coordinated or consolidated pretrial proceedings” for cases that have some common nucleus of injury. Usually, when we refer to an MDL we are talking about consolidated proceedings in front of a judge in the federal court system. Today, many states also have an MDL procedure that is similar to the federal mechanism.
An MDL is a “sort of” class action lawsuit. An MDL is intended to coordinate or consolidate pretrial activities under one judge for what we call core discovery. This is the pre-trial investigation — interrogatories, depositions, document requests, etc. – that are common to all of the claims. There is usually minimal discovery about individual cases other than the basic information about the claim, which is primarily done so the defendants can get a look at the value of the cases for settlement. The hope is that this process allows the parties to size up the merits of the case. The result is often a global class action settlement. So an MDL is often effective method of bringing an aggregate or global settlement with few or even no trials. It often allows victims to get a recovery without having to significantly participate in the litigation.
What is a Bellwether Trial?
The hope in an MDL is that the parties are able to settle most or all of the cases during the pre-trial process the strengths and weakness of the case. The problem is human nature — we all tend to assume that our side is going to win. Admittedly, we do this sometimes as plaintiffs’ lawyers. But defense lawyers are worse, they all seem to think they will win most of the cases even when the deck is stacked against them.
So the MDL judge will often commission a few bellwether trials to give the parties a real look at how juries will resolve these cases. This gives the litigants an opportunity to testing various theories and defenses in a trial setting before the ultimate focus group: a real jury. So there a few trials, that usually last a month or two, to give the parties hard evidence of what reasonable settlement amounts might be.
Bellwether trials also often have a knack for precipitating settlement negotiations even before the first verdict is rendered because many times both parties want to avoid the risk of a trial that begins to define the settlement value of the claims.
What if There is No Settlement After Bellwether Trials?
If the bellwether trials do not lead to an agreement, the MDL judge will remand the cases back to their local federal jurisdictions to be tried as individual cases. In other words, the class action then breaks apart, and individual cases are set up for trial around the country. This is the point where real individualized discovery is done on each claim. The hope for many victims is that the cases reach a favorable settlement long before this happens.
Who Decides Whether a Group of Cases May Become an MDL?
The decision on whether an MDL is granted is decided by a panel of seven federal judges designated by Supreme Court Chief Justice John Roberts. Congress granted the MDL Panel broad powers to transfer groups of cases to a single district court to conduct pretrial proceedings. The key to the MDL is the ability to do this regardless of whether the court has personal jurisdiction over the parties or whether the venue requirements of 28 U.S.C. § 1404 are met. The Panel has the ultimate responsibility to decide whether there will be an MDL and which judge will coordinate the cases.
What Happens to a Claim After It is Transferred to an MDL?
When a case is added to the MDL — called a tag along — the MDL judge will set procedures and deadlines to govern the litigation. Individual plaintiffs typically fill out a written Case Information Sheet that is very detailed. Usually after that, not much else happens with individual cases until a global settlement is reached or, worst case scenario, the cases are transferred back to their local jurisdictions for individualized discovery and trial.
What Is a Science Day in the MDL?
A Science Day in an MDL is when the parties put forward the scientific evidence that judge will see in case. The purpose is to educate the judge.
The lawyers are always told that this is a non-adversarial proceeding. Lawyers are lawyers. That is near impossible. But advocacy is toned down to put forth the science and medical literature the judge will need to understand to make Daubert and other rulings in the case.
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