The Trend Toward MDLs in Products Cases

A review of multidistrict litigation (MDL) statistics confirms the increasing percentages of federal cases being consolidated into MDLs. According to the Judicial Panel on Multidistrict Litigation (JPML) website, as of June 2019, 202 MDLs were pending in 46 different federal districts, in 32 different states, before 160 different transferee judges. California boasts the largest number of MDLs, with 30. New York State is close behind with 26. The 141,721 cases included in these MDLs represent more than 50 percent of the federal civil docket. More than 30 percent (or 70 MDLs) of the pending MDLs are products liability cases, a significant increase from 16 percent in 2005. And, of the 70 MDLs, more than 50 are litigations involving pharmaceutical products and/or medical devices. These numbers highlight the increase in the frequency with which products liability cases are being coordinated in MDL proceedings.

The MDL statute enacted in 1968 allows for the transfer of cases “involving one or more common questions of fact … pending in different districts” to “any district for coordinated or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a). After an MDL is established, later-filed cases involving the same questions of fact are seamlessly transferred to the MDL as tagalong cases. The efficiencies seen in MDL proceedings since 1968 have caused the MDL docket to grow dramatically. In the early years, the “caseload was relatively flat—in the late 1970s and throughout the 1980s, the Panel averaged only around 40 [consolidation] motions per year.” Emery G. Lee III et al., “Multidistrict Centralization: An Empirical Examination,” 12 Journal of Empirical Legal Studies,  211, 221 (2015). By the 1990s, the MDL caseload was growing rapidly. Today, the JPML reports that it considers more than 55 motions per year on average, and as of the end of 2018, MDLs accounted for 52 percent of all civil cases pending in federal court.

Recent MDLs

This year, the JPML has created seven new MDLs in various federal courts across the country. Of those, four are products liability cases, each assigned to a U.S. District Judge with experience overseeing MDLs:

  • In re: Valsartan N-Nitrosodimethylamine (NDMA) Contamination Products Liability Litigation: Consolidated in the District of New Jersey, these personal injury and class action cases allege that defendants manufactured and distributed generic Valsartan, a blood pressure medication, contaminated with N-nitrosodimethylamine (NDMA) or N-nitrosodiethylamine (NDEA), both of which are alleged to increase the risk of cancer and liver damage. Nearly 40 defendants are named, including Chinese manufacturers, U.S. pharmacies, and generic drug makers. U.S. District Judge Robert B. Kugler is overseeing this MDL, which, as of June 19, 2019, included 60 pending actions.
  • In re: 3M Combat Arms Earplug Products Liability Litigation: On April 3, 2019, the JPML centralized eight lawsuits from California, Minnesota, Oklahoma, and Texas federal courts, along with 635 related actions in more than 30 federal courts. The JPML’s Order consolidated the cases in the Northern District of Florida before U.S. District Judge M. Casey Rodgers. The cases concern allegations that 3M’s Combat Arms Earplugs were defective and caused users of the earplugs to develop hearing loss and/or tinnitus. As of June 19, 2019, this MDL included 960 pending actions.
  • In re: Allura Fiber Cement Siding Products Liability Litigation: Consolidated in the District of South Carolina on April 2, 2019, this MDL is overseen by U.S. District Judge David C. Norton. At issue are defendants’ fiber cement siding products, which are alleged to be defective because they crack, peel, warp, and break off soon after installation despite representations that the products have a service life of 50 years. Although case-specific issues and differences in product lines were noted by the defendants in opposition to MDL coordination, the JPML granted the plaintiffs’ request in order to promote efficiencies in discovery and management of the litigation. As of June 19, 2019, this MDL included 11 pending cases.
  • In re: Hill’s Pet Nutrition, Inc., Dog Food Products Liability Litigation: Six lawsuits filed against Hill’s Pet Nutrition, Inc., were transferred to the District of Kansas following the JPML’s June 4, 2019, transfer order. The cases allege that Hill’s Prescription Diet and Science Diet canned dog food products contain dangerously high levels of vitamin D, with some plaintiffs claiming that the dog food led to the death of their pets. Chief Judge Julie A. Robinson presides over this MDL, which as of June 19, 2019, included 30 pending cases.

MDL Subcommittee

In November 2017, the Advisory Committee on Civil Rules created a Subcommittee to examine current MDL practices, to include consideration of a rule for MDL practice to add to the Federal Rules of Civil Procedure. In addition, a number of reforms are under consideration that, if implemented, would impact the management of MDL litigations.

Proposed reforms include:

  • Requiring MDL plaintiffs to disclose proof of their injury and cause at an early stage of the litigation
  • Allowing interlocutory appellate review of certain trial court rulings such as jurisdictional, Daubert, or preemption decisions
  • Disallowing bellwether trials without defendants’ consent
  • Requiring disclosure of third-party litigation funding
  • Restricting grounds for joinder and consolidation of cases for trial
  • Heightening pleading requirements to weed out meritless claims.

It is unclear whether any or all of these reforms will be implemented, but if any are, MDL practice could change dramatically.

No rule changes are currently on the horizon while the MDL Subcommittee is in fact-finding mode. The Subcommittee has acknowledged that additional research is needed before it can offer recommendations on any proposed reforms or rule amendments. Those who practice regularly in MDLs should stay tuned to these potential reforms as they could change the way these cases are pursued and defended.