MDLs: The Black Holes of the U.S. Judicial System

“Of all the conceptions of the human mind from unicorns to gargoyles to the hydrogen bomb perhaps the most fantastic is the black hole: a hole in space with a definite edge over which anything can fall and nothing can escape; a hole with a gravitational field so strong that even light is caught in its grip; a hole that curves space and warps time.”

Kip Stephen Thorne, Cosmology +1: Readings from Scientific American (1977).

Many attorneys (including this author) have been known to mutter in dismay, “this MDL is like a black hole.” The description fits. Still others have never heard of an “MDL.”

“MDL” is the acronym for “Multidistrict Litigation,” a process created by Congress in 1968. See 28 U.S.C. § 1407. Its stated purpose is “to centralize civil actions pending in different federal districts to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel, and the judiciary.” United States Judicial Panel on Multidistrict Litigation, “About the Panel.”

Think of large product liability cases, for example. An individual is harmed by an allegedly defective product in Newburg, New York, and that same product harms individuals in Columbia, South Carolina, Abilene, Texas, and West Palm Beach, Florida. Each individual files a case against the manufacturer of the product. Now multiply the number of individual plaintiffs by ten. There are now 40 cases pending against the manufacturer (and perhaps other manufacturers in the supply chain), each in different jurisdiction across the United States. Instead of having to defend itself in 40 jurisdictions at once, the defendants move for the cases to be consolidated into an MDL and adjudicated before one federal judge in one district court. 

Since the inception of the MDL, there have been over 1,800 litigation dockets created, involving over 1.1 million cases. These dockets encompass litigation categories as diverse as airplane crashes, train wrecks, mass torts, marketing and sales practices, patent validity and infringement, securities fraud, and antitrust price fixing. Id. As of May 2023, there are 174 MDLs in federal courts across the United States. Id.

Although created for its supposed pretrial efficiencies, MDLs do present a “black hole” problem. They may encourage litigation against already-named defendants, and in the interest of “robust discovery,” judges are disinclined to allow defendants an early escape (whether justified or not). As a result, defendants can find themselves sucked into literally thousands of cases without the ability to file a motion to dismiss or motion for summary judgment until the discovery process against every defendant is complete. In the meantime, defendants are left to incur hundreds of thousands of dollars in defense costs while waiting for their turn to present their case to be dismissed.

Take, for example, the following statics on just a few of the 174 current MDLs:

• MDL 2740 (Louisiana) – Taxotere Products Liability Litigation – 10,607 pending actions
•  MDL 2846 (Ohio) – Polypropylene Hernia Mesh Products Liability Litigation – 19,476 pending actions.
• MDL 2323 (Pennsylvania) – NFL Players’ Concussion Injury Litigation – 329 pending actions.
•  MDL 2783 (South Carolina) – Aqueous Film-Forming Foams Products Liability Litigation – 4,494 pending actions.

So, what is a manufacturer to do? First, do not get sucked in. Be sure any agreements with other manufacturers or others in the supply chain contain strong indemnification clauses, including a “duty to defend and hold harmless” provision based on the allegations made by any potential plaintiff.

If you find yourself stuck in the gravitational pull, having been named in a few lawsuits before they are consolidated into an MDL, immediately file a motion to dismiss these cases with the hope that you will be let out. You can also oppose any transfer into the MDL, though this is likely to be denied by the transferring district court.

If you find yourself in the black hole as the case against you is filed directly in the MDL or transferred into the MDL, work with your co-defendants to share discovery costs (experts, deposition coverage, etc.) and form coalitions based on common allegations. To the extent possible, press the judge to manage the MDL in such a way to allow defendants to file motions throughout the discovery process when the evidence is clear that a defendant is wrongfully named.    

Finally, rest assured that one day you will have the opportunity to escape, either when discovery closes, the cases settle, or the trial(s) conclude. But this could be many years away, because remember, black holes “curve space and warp time.”