LCJ URGES MDL REFORM
According to Rule 1, the Federal Rules of Civil Procedure (FRCP), “govern the procedure in all civil actions and proceedings in the United States district courts.” It is widely known, however, that the FRCP do not govern key elements of procedure in many MDL cases, which now constitute 70 percent of federal civil cases. The reason is straightforward: the FRCP no longer provide practical presumptive procedures in MDL cases, so judges and parties are improvising.
While some ad hoc procedures have more merit than others, they all share the same lack of transparency, uniformity and predictability. Many common practices also cause an unbalanced litigation environment by failing to provide protections inherent in the FRCP.
A solution is needed and LCJ has proposed six rule amendments to fill the gap. They include: (1) mandating early vetting of claims, (2) allowing appellate review of dispositive motions, (3) establishing a consent procedure for bellwether trials, (4) treating master complaints as pleadings, (5) providing a common standard for joinder, and (6) requiring disclosure of third party litigation funding. You may view the LCJ comment explaining the proposed rule changes in detail here.
The Advisory Committee on Civil Rules formed a subcommittee to examine the need to amend the FRCP to ensure their application in MDL cases. In 2022, the subcommittee published a sketch FRCP Rule 16.1, which holds promise for helping multidistrict litigation (MDL) judges and practitioners—especially first-time MDL participants—take action on topics whose significance can be difficult to foresee at the beginning of MDL proceedings.
The most important subject to address at the outset of MDL proceedings is the potential for the mass filing of unexamined claims, including unsupportable claims on behalf of plaintiffs who were not exposed to the product and/or did not have an injury within the scope of the suit. As LCJ advocates in its latest comment to the subcommittee, an FRCP Rule 16.1 should help avoid the well-known problems that unexamined claims cause in MDL proceedings by prompting judges to require a demonstration of basic due diligence into plaintiffs’ claims, such as evidence of exposure to the alleged cause and a resulting injury, early in the case.
The sketch rule should also be edited to remove or modify subsections that could do more harm than good by enshrining into the FRCP concepts that raise complicated or undecided questions about existing FRCP or statutory provisions.
Notably, a March 1 letter signed by 31 corporations urges the Advisory Committee on Civil Rules to continue working on a “sketch” Rule 16.1 for MDL proceedings and to address in that sketch rule the mass filing of claims that were not subject to meaningful pre-filing due diligence. The letter also urges that the Advisory Committee on Civil Rules avoid negative unintended consequences in any rule proposal. The letter is here: Letter to the Committee on Rules of Practice and Procedure, “A Possible New Rule 16.1 to Govern Early Management of Multidistrict Litigation (MDL) Proceedings” – March 1, 2023
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LCJ IN THE NEWS
THE RULE 16.1 SKETCH AND THE MDL “RULES PROBLEM”: HOW A PROMPT TO REQUIRE BASIC DUE DILIGENCE WOULD HELP FIRST-TIME MDL JUDGES MANAGE NEW PROCEEDINGS AND AVOID COMMON PITFALLS, December 22, 2022
COMMENT TO THE ADVISORY COMMITTEE ON CIVIL RULES AND ITS MDL SUBCOMMITTEE ON HOW MDL JUDGES WOULD BENEFIT FROM A NEW TOOL FOR INFORMING ORGANIZATIONAL DECISIONS AND REDUCING THE DELAY BETWEEN COORDINATION AND INITIAL DISCOVERY WHILE PRESERVING JUDICIAL DISCRETION, March 8, 2022
COMMENT TO THE SUBCOMMITTEE ON MDL ON SURVEY OF MDL CLAIMANTS SHOWING THE REAL PARTIES IN INTEREST AGREE AD HOC PROCEDURAL SHORTCUTS INTENDED TO REDUCE DISCOVERY “BURDENS” UNDERMINE FAIRNESS, September 29, 2021
COMMENT TO THE ADVISORY COMMITTEE ON CIVIL RULES AND ITS MDL SUBCOMMITTEE FIXING THE IMBALANCE: TWO PROPOSALS FOR FRCP AMENDMENTS THAT WOULD SOLVE THE EARLY VETTING GAP AND REMEDY THE APPELLATE REVIEW ROADBLOCK IN MDL PROCEEDINGS, September 9, 2020
COMMENT TO THE ADVISORY COMMITTEE ON CIVIL RULES: WHAT MDL PROBLEMS NEED TO BE SOLVED WITH AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE? March 30, 2020
REQUEST FOR RULEMAKING to the ADVISORY COMMITTEE ON CIVIL RULES RULES. FOR “ALL CIVIL ACTIONS AND PROCEEDINGS”: A CALL TO BRING CASES CONSOLIDATED FOR PRETRIAL PROCEEDINGS BACK WITHIN THE FEDERAL RULES OF CIVIL PROCEDURE - August 10, 2017
TEN OBSERVATIONS ABOUT THE MDL/TPLF SUBCOMMITTEE’S EXAMINATION INTO THE FUNCTION OF THE FEDERAL RULES OF CIVIL PROCEDURE IN CASES CONSOLIDATED FOR PRETRIAL PROCEEDINGS - April 6, 2018
MDL PRACTICES AND THE NEED FOR FRCP AMEMDMENTS:
PROPOSALS FOR DISCUSSION WITH THE MDL/TPLF SUBCOMMITTEE OF THE ADVISORY COMMITTEE ON CIVIL RULES - September 14, 2018
For more background and information about MDLs and the need for reform, please click below.