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TBJ OCTOBER 2022

Making Many Cases One

Big Pharma litigation and MDLs.

Written by W. Mark Lanier and Caroline McLeod


Big Pharma cases often involve products sold to many consumers across the United States. Big Pharma litigation therefore means thousands of plaintiffs, thereby requiring efficient means to aggregate litigation so the common issues can be resolved once and for all. This article discusses the two prevalent forms for aggregate litigation: multi-district litigation, or MDLs, and class actions, and compares these proceedings in terms of their creation, process, and usefulness for settlement. The number of federal cases being consolidated into MDLs is rising, and MDLs now represent over 50% of the federal civil docket.1 Of that total, more than 30% are products liability cases—a significant increase from 16% in 2005—and most involve pharmaceutical products or medical devices.2 Products liability cases also comprise about 23% of Texas MDLs.3

 

Creation
Class actions and MDLs are two types of legal proceedings that combine the interests of many individuals in one action rather than separate lawsuits, at least for a period of time. The main difference between class actions and MDLs is the status of the plaintiffs and the number of individual cases. MDLs involve the cases of hundreds of distinct plaintiffs, each with their own individual claims. MDLs are often used when cases concern the same defective product against the same or similar defendants in different federal jurisdictions. The MDL panel will combine the cases for pre-trial proceedings in an MDL transferee court, and that court will oversee discovery and motion practice related to common issues. Because each plaintiff in an MDL maintains their own individual case, each plaintiff must be prepared to prove their own facts, including how they were injured by the defendant. Given the inevitable differences in the way consumers purchase, use, and react to a defective product, MDLs are more appropriate vehicles for aggregate resolution in such cases than class actions.

In contrast, a class action is one suit with a class of plaintiffs suing one or more defendants. To qualify for class action treatment, the class must satisfy criteria established by state or federal court rules. These rules require that: the class be so numerous that joinder of all members is impracticable; there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class.4 In addition to these basic requirements, a class must satisfy more onerous requirements depending on what type of relief class members are seeking.5 If the court grants class certification, all class individuals must be notified of the case and given the choice to either participate or opt out. Additionally, class action forums are determined by the plaintiffs’ lawyers filing the suit subject to venue and jurisdictional requirements applicable to all cases, while MDL forums are determined by a judicial panel appointed for that purpose.

 

Process
There are also notable differences between how class actions and MDLs proceed through the judicial systems. In a class action, one or more plaintiffs represent a larger group of individuals. This individual is known as the class representative or lead plaintiff, and his or her counsel as class counsel. The class counsel and class representative then lead the litigation and prosecute common issues on behalf of the entire class against the defendant. In contrast to the much broader leadership group for an MDL, the class representative and class counsel represent an entire group of people and litigate common issues of law or fact that determine the outcome of class members’ claims.

In MDLs, the plaintiffs have separate lawsuits sharing a common basis. The judicial panel decides whether to consolidate the cases and then chooses a court to which all the cases will be assigned. This court oversees the pre-trial proceedings and the discovery process for all of the cases. Since pre-trial proceedings and discovery are often the most time-consuming and expensive part of a case, the primary advantage of MDLs is that it is not necessary for each attorney to request and review documents, depose witnesses, or conduct other research. And it is likewise unnecessary for the defendant to litigate these issues hundreds of times against many different plaintiffs. After completion of the pre-trial processes, the cases can be remanded to their original jurisdictions for trial. However, it is common for the parties to agree on a certain number of bellwether trials in the MDL court to assess the strengths and weaknesses of their case and determine a fair settlement value.

 

Settlement
One benefit to certified class actions that MDLs do not share is the empowerment of the class counsel to pursue collective adjudication on behalf of all claimants. Thus, the tipping point for settlement in class actions is often the certification of the class and then affirmance of that certification on appeal. After certification, it is common for the parties to find a fair settlement value. While MDL judges may weigh in on settlements as a matter of discretion and to provide information to the settling parties, class action settlements must be approved by the court, who will examine the fairness of the settlement for all class members.6 Because class actions bind non-parties (i.e., all those who fall within a certified class and who did not opt out)—as opposed to MDLs, which bind only those who are parties to lawsuits that have been transferred to the MDL—settlements are subject to several formal judicial and procedural safeguards that exist only informally in MDLs. For instance, the class action rule requires that judges provide notice, hold a hearing, and make findings of fairness and adequacy as a prerequisite to the binding effect of any class settlement.

When settlements occur during the pretrial and discovery processes in MDLs, the judge may oversee negotiations for all the cases grouped into the MDL, and each individual plaintiff can choose to accept the settlement terms or continue his or her case.7 Because MDLs lack a formal finding of sufficient cohesion to permit representative litigation and adjudication, lead lawyers in MDLs do not enjoy the same leverage to encourage settlement as lawyers in class actions.8 Thus, the tipping point for settlement in MDLs is often the bellwether trials. The pretrial motion practice, together with the trials and appellate outcomes from those trials, provide critical information for determining the risk of trial versus settlement, and often result in a negotiated resolution of all or most cases in an MDL.TBJ

 

Notes
1. Zoha Barkeshli & Alan Vickery, The Trend Toward MDLs in Products Cases, JDSUPRA (Aug. 6, 2019), https://www.jdsupra.com/legalnews/the-trend-toward-mdls-in-products-cases-34353/ (last visited Jul. 27, 2022).
2. Id.
3. Zachary D. Clopton & D. Theodore Rave, MDL IN THE STATES, 115 Northwestern U. L. Rev. 1649, 1690 (2021).
4. Fed. R. Civ. P. 23(a); Tex. R. Civ. P. 42(a).
5. Fed. R. Civ. P. 23(b); Tex. R. Civ. P. 42(b).
6. Howard M. Erichson, What MDL and Class Action Have in Common, 70 Vand. L. Rev. En Banc 29, 36 (2017).
7. See Andrew D. Bradt & D. Theodore Rave, The Information-Forcing Role of the Judge in Multidistrict Litigation, 105 Cal. L. Rev. (2017).
8. Erichson, supra n.6, at 38.



Mark LanierW. MARK LANIER,
an attorney, author, teacher, pastor, and storyteller, is the founder of the Lanier Law Firm with offices in Houston, New York, and Los Angeles. Lanier has earned international recognition setting record verdicts in courtrooms throughout the United States. His courtroom experience is significant and diverse with nearly $20 billion in verdicts in his career in almost all practice areas. Lanier is published in both legal and theological arenas and has four books, numerous published articles, and two movies among his works.



Caroline McLeodCAROLINE McLEOD
is a member of the Issues and Appeals Team at the Lanier Law Firm. Her practice involves briefing in trial and appellate courts in the areas of mass tort litigation, commercial litigation, personal injury, and products liability. McLeod was a key member of the firm’s trial team combatting the opioid epidemic that secured a verdict for two counties in Ohio, and she was part of the effort that protected a $2.11 billion judgment from a Missouri Court of Appeals against Johnson & Johnson.


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