March 21, 2012 Articles

Factors For and Against MDL Coordination

By John P. Lavelle Jr. and Thomas V. Ayala

Multidistrict litigation (MDL) proceedings are often proposed to manage product-liability litigation. Any party to a case may move to create an MDL, and the Judicial Panel on Multidistrict Litigation may initiate the process on its own initiative, sometimes at the suggestion of one or more clerks of court who notice multiple filings of similar cases. Congress created the MDL Panel in 1968 with the enactment of 28 U.S.C. § 1407 and empowered it to transfer multiple civil actions to a single federal district for coordinated pretrial proceedings:

When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.

28 U.S.C. § 1407(a).

The terms of section 1407 are of limited value to parties and practitioners attempting to predict whether the MDL Panel is likely to initiate an MDL in a particular instance. As of the time of the writing of this article, 64 out of 288 pending MDLs (22 percent) are product-liability actions. See United States Judicial Panel on Multidistrict Litigation, MDL Statistics Report—Distribution of Pending MDL Dockets as of November 16, 2011, But in contrast to litigation arising from mass accidents like air and rail crashes, which the panel has consistently transferred for MDL coordination, the panel has in many instances declined to centralize product liability actions in an MDL.

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