Multidistrict litigation

MDL cases occur when "civil actions involving one or more common questions of fact are pending in different districts."[1] In order to efficiently process cases that could involve hundreds (or thousands) of plaintiffs in dozens of different federal courts that all share common issues, the Judicial Panel on Multidistrict Litigation (JPML) decides whether cases should be consolidated under MDL, and if so, where the cases should be transferred. Cases subject to MDL are sent from one court, known as the transferor, to another, known as the transferee, for all pretrial proceedings and discovery. If a case is not settled or dismissed in the transferee court, it is remanded (that is, sent back) to the transferor court for trial.

The MDL statute is 28 U.S.C. § 1407 in the United States Code. Section 1407 came about because of the first large-scale complex litigation to engulf the federal judiciary: the gigantic antitrust scandal in the U.S. electrical equipment industry in the early 1960s.[2] The scandal resulted in the filing of 1,912 separate civil actions in district courts in 36 federal judicial districts, which together pleaded a total of 25,714 claims involving 20 product lines.[2] In January 1962, Chief Justice Earl Warren appointed a Co-ordinating Committee for Multiple Litigation of the United States District Courts.[2] (The Committee's name reflects the fact that it was still commonplace at the time to include a hyphen in the word "coordinate.") The chair of the Committee was Alfred P. Murrah, then the chief judge of the Tenth Circuit.[2] The Committee responded to the emergency with a number of ad hoc procedures which would become commonplace in multidistrict litigation, such as consolidated national depositions and document depositories.[2] Through aggressive case management, the Committee was able to terminate the electrical equipment litigation by March 1967; only nine cases went to trial and only five of those went to verdict.[2] In the course of its work, the Committee discovered that complex litigation involving similar issues in multiple districts was becoming a regularly recurring problem in federal courts, and recommended the enactment of a formal statutory foundation for their management in March 1964.[2] This eventually led to the enactment of the MDL statute four years later and the creation of the JPML as a permanent replacement for the Committee.[2]

Most MDLs involve a few dozen to a few hundred cases. The notable exception is MDL No. 875, based in the Eastern District of Pennsylvania, which is the largest and longest-lasting MDL. It was created in 1991 by the JPML to manage all asbestos personal injury and wrongful death cases in the federal courts. As of 2011, over 121,000 cases had been transferred into MDL No. 875, and over 108,000 cases had been settled, dismissed, or remanded, leaving about 13,000 pending.

One controversial aspect of MDLs is that the MDL statute does not grant the transferee court any discretion as to remand for trial, even when both courts would prefer to keep the case in the transferee court for trial. After all, by the time a case reaches the trial stage, the transferee has become intimately familiar with the issues, the parties, and their attorneys (because the transferee court will normally have decided one or more motions for summary judgment at that point), while the transferor court must spend time catching up on what happened while the case was away in the MDL. Therefore, the JPML promulgated a court rule authorizing the transferee to try a case before itself, if it wished. In 1998, however, the U.S. Supreme Court ruled that the plain language of the MDL statute required remand back to the transferor for trial, and invalidated the JPML's rule.[3] Congress has not yet amended the MDL statute to resolve this issue.

Most corporate defendants prefer MDL proceedings. Not only can they consolidate all federal cases pending at the time the MDL consolidation request is granted, they can also bring in any subsequent federal cases (and most state cases as well) as so-called "tag-along" cases. Furthermore, from a defendant's point of view, it is more efficient and less dangerous to have each defense witness cross-examined in a single marathon deposition; otherwise, a witness may have to be deposed in hundreds of depositions around the country, which raises the risk that the witness may inadvertently give inconsistent testimony and destroy his or her credibility.

When state law cases filed in federal court under diversity jurisdiction are consolidated into MDLs, the Erie doctrine comes into play and confronts federal district judges with some of the most difficult, multilayered legal questions they will ever see in their careers. The problem is that when sitting in diversity and asked to decide dispositive pretrial motions like the motion for summary judgment, the transferee court must apply the law of the state of the transferor court, which could be located anywhere in the United States.[4] But in complex product liability cases such as airplane crashes, the victims might not even be American citizens and the plaintiffs' losses may not even have occurred within the borders of the United States,[5] and of course, every U.S. state has its own choice-of-law rules. The result is that a MDL judge often has to sort through the laws of two, three, or four separate jurisdictions, none of which may be the state which the transferee court sits in, just to determine whether a plaintiff has a viable cause of action. Naturally, the lawyers in the proceeding must first educate themselves and the judge about the relevant laws from all those jurisdictions.

As of 2008, the District of Minnesota was the busiest district for MDL cases, with 9 active MDL cases pending as of December 2011.[6]

• Judicial Panel on Multidistrict Litigation