Fifty years after the Multidistrict Litigation (MDL) Statute opened a new era in how US courts handle complex, multi-plaintiff disputes, panelists at an October 12 conference at NYU Law examined the development of MDLs from a variety of perspectives. 

Peter Zimroth, executive director of the Center on Civil Justice (CCJ), noted in his opening remarks that by 2014 MDLs, which allow similar cases to be consolidated in a single court, constituted more than 40 percent of the federal docket. “The impact of MDL on the judiciary, on the justice system, and on our country has been enormous,” he said. The conference was co-hosted by CCJ and Yale Law School’s Liman and Solomon Centers.

Watch video of the discussion:

The opening panel, moderated by Dechert partner Sheila Birnbaum ’65, ranged broadly over current issues involving MDLs, including proposed legislation and recent cases. As the discussion came to a close, the panelists—including Ken Feinberg of Feinberg Rozen, who has served as administrator of a number of large, high-profile compensation funds, Christopher Seeger of Seeger Weiss, a member of the plaintiffs steering committee in the MDL pending against opioid makers; and University Professor Arthur R. Miller—traded views and predictions about how to handle the flood of claims stemming from the opioid crisis. 

Selected quotes:

Ken Feinberg: “The opioid thing, forget a separate claims program. There's not enough money in the world to fund a separate claims program. And it's a very immature tort, actually.… I have difficulty understanding at this stage of the opioid litigation how you could develop a contribution formula from our manufacturers, wholesalers, retailers, doctors, intermediaries [and] insurers to try and come up with a program—until, I guess, there are some cases tried and some determinations made as to who's liable and who's primarily responsible. And then, maybe, it begins to come together.” 

Christopher Seeger: “The difficulty of this case, though, I will tell you—which deals with perception—is that whenever it gets to the point that there's a resolution and if it's a settlement… people will have to understand that all you’re ending is the litigation. The problem and the crisis won't be solved by the litigation; it's just too big.” 

Arthur R. Miller: “There's always going to be a crisis. And you [could] say, “You know this is too big, the system, the judicial system can't handle it,” and in some cases, maybe the system can't handle it. That doesn't mean you don't try to handle it, and hope that you get manna from heaven in the form of attorneys general coming in, in the form of Congress.… You just do what you can with the tools, as imperfect as they are, that you have.” 

Posted November 30, 2018