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September 23, 2019 Practice Points

Book Review: Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

Professor Elizabeth Burch levies criticisms of the MDL system that will not sit well with many in her intended audience, but the data sets she created and draws on present factual information that the bar, academics, and policy makers should consider.

By Paul D. Rheingold

It takes some bravado for a professor who has written a book devoted to showing the faults in handling mass tort cases, especially in the settlement process in multidistrict litigation (MDL), to ask a plaintiffs’ lawyer to do a review. Perhaps Professor Burch, who is Fuller E. Callaway Chair of Law at the University of Georgia, felt that a participant in this sort of litigation, such as your reviewer here, would admit to fault and agree with her proposals to improve the practices surrounding the mass settlement of cases. In this aim, she has only partially succeeded.

Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation is a heavy indictment of the way in which MDLs are operated today, by the judges but more so by the plaintiffs’ bar. Professor Burch feels that there is a too cozy relationship between the two and with defendants as well. Settlements are forced down on the victims (OK, call them claimants) in such a way that they have no options and their voices are squelched. Ethics issues are brushed aside.

The Professor’s “Datasets”

Before we go further into the substance of her grievances, I must note that the unquestionable strength of Professor Burch’s book is its foundation based on prodigious data gathering on MDLs, done with the assistance, I am sure, of many law school interns, given that the data sources were so diffuse. She has scraped data from pretrial orders, MDL opinions, and other filings to get the details needed. The data collection runs some 40 pages in a series of appendices.

She has studied some 73 MDLs intensively. The type of information extracted per MDL includes whether expert reports or plaintiff fact sheets were required, use of the Lone Pine doctrine, confidentiality of settlements, use of special masters, and appeals processes. These 73 MDLs primarily date from 2009 to 2013, although Professor Burch also used some earlier cases for which there is substantial outcome data, including the MDLs for Propulsid, Prempro, Vioxx, and asbestos. She included only MDLs pending on the docket as of 2013 (and not later) to allow enough time for the resolution of the MDL, which of course lags from its inception. Most unusually, but in keeping with her spirit as a sharing person, Professor Burch has posted online all of her “dataset,” as she calls it, and is in fact updating it periodically.

In addition to MDL orders and filings, Professor Burch uses newspaper articles as a significant part of her source information to present the problems with mass tort resolutions. Often these articles give voice to individual claimants who feel that they have had no say in the outcome. While these articles are titillating, they are the antithesis of the data-driven bases for her conclusions.

On the other hand, Professor Burch also makes novel use of other types of non-legal materials, namely behavioral and social science methods of analysis. She applies the thinking and analysis methods developed by scientists to examine the legal issues raised—for example, how social networking develops.

Although Professor Burch’s book might have its primary audience in the academic world, its empirical focus also makes it of great interest to the bar, both on the plaintiff and defendant’s sides, as well as to the judges handling MDLs. She also aims to speak to policy makers, including legislators who are always seeking to “reform” the tort system. While readers bring their own perspectives, if not their own prejudices, to the issues the book examines, each reader must deal with the factual data she presents and summarizes in the text.

The Professor’s Major Criticisms of the System

These are chief targets for attack in her treatise:

  • private settlements, which prevent the presiding MDL judge from having oversight of the settlement and the payout, as contrasted with the supervision that a judge in a Rule 23 class action must exercise;
  • settlements forced on claimants without viable alternatives or adequate explanation of how the sum they are receiving has been calculated;
  • claimants being forced to sign releases before they know much they will receive in settlement of their claim;
  • ethical issues, such as plaintiff lawyers being forced to induce all of their clients to participate in the mass settlement and agree to “discharge” any clients who don’t agree to the terms;
  • the role of “repeat players” on plaintiff steering committees (PSCs), who have become too comfortable with the court and defense counsel and who are motivated more by their desire to make a fee and get paid their common benefits than by a concern for their clients; and
  • PSC leaders also becoming case lenders.

In almost all of these grievances, which are explored in separate chapters in her work, Professor Burch presents factual vignettes of disgruntled plaintiffs. These stories, however, are anecdotal and often omit the full picture. For example, she includes the complaint of a Nuvaring victim about being forced to take a small settlement for relatively large injuries, but she omits that there was virtually no liability and the New Jersey judge had granted summary judgment in all of the bellwether cases.

The Professor’s Suggestions for Reform

To her credit, Professor Burch uses the faults she finds with the current system as a springboard for making major suggestions for improvement. In the balance of this book review, I list and then comment on their respective merits:

  1. Improving the plaintiff steering committees. Professor Burch calls on judges and lawyers to avoid placing the same “grizzled” (page 180) lawyers on the PSCs over and over again and, instead, to allow for more debate and diversity, including what she defines as “cognitive diversity.”

    What Professor Burch only grudgingly recognizes in various places in her book is that these “repeat players” are ones willing to take the risks of investing large sums of money, and time, into contingent litigation. MDL judges appreciate their leadership ability gained through experience in many prior suits.
  2. Tying common-benefit fees to the outcome. Here Professor Burch dips into heavy-duty math to determine what might be a fair common-benefit fee, based on quantum meruit principles.

    While the author does have telling examples of common-benefit amounts determined primarily based on the demand of the PSC and without a detailed hearing, there are many other examples among recent MDL settlements where the court took pains to make sure that common fees are based on reasonable hourly rates and actual time spent. And, of course, a poor outcome for plaintiffs does not necessarily imply that the plaintiffs’ lawyers did a poor job.
  3. “Empowering the Masses.” Professor Burch makes extended arguments that the claimants (mostly women in her examples) need to have their own voices heard. They should not just be statistics in a battle for money. Claimants should form their own support groups and they should be heard at settlement hearings.

    I think almost everyone would agree to these proposals, and at a minimum, nothing in the system should stymie the role of such support groups. But in my experience, most of the claimants have no active interest in the litigation and will wait passively for the outcome.
  4. Increasing the remand of cases from the MDL. Professor Burch suggests that an increase in remand would diminish the power of the global settlement, give opt-outs a place to turn, and localize cases to places where the injured claimant resides.

    This proposal embraces a little bit of dreamy thinking, in my view. Remand as a threat or actuality where the parties cannot work out a settlement makes sense, but MDL judges are unlikely to send back to district courts all over the country handfuls of plaintiffs who do not understand the settlement reached. Mere retransfer does not per se increase the voice of the injured person and may well tend to diminish settlement values.
  5. Ensuring greater supervision of “private” MDL settlements. This important topic is not included as a major subdivision in the professor’s chapter on reforming mass tort litigation, but it is the subject of several chapters in her book and is well documented with many examples of settlements forced on claimants, and their individual lawyers, where the supervising judge had been relieved of any final supervisory role by the “private” agreement.

    As to this point, I say “amen.” These clients and their individual lawyers need a place to lodge complaints about being forced into settlements.


In sum, this book provides interesting insights and helpful informational content, which makes it worthy of purchase and review. Thanks to Professor Burch for developing such a strong data-driven basis for her analyses and sharing it with us, whether we agree with her conclusions or not.

Paul D. Rheingold is of counsel to Rheingold, Giuffra, Ruffo & Plotkin LLP in New York, New York.

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