Multidistrict litigation cases (MDLs) now make up half the civil caseload in federal courts. This method of centralizing individual lawsuits—which often results in settlement following bellwether trials—has become a predominant way of handling mass torts, such as product liability claims. In a virtual event hosted by the Center on Civil Justice (CCJ) on October 20, plaintiffs attorney Chris Seeger of Seeger Weiss and Elizabeth Burch, a professor at the University of Georgia School of Law and author of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation, offered different perspectives on the MDL process and how to improve it. John Koeltl, US district judge in the Southern District of New York, moderated the conversation.
A central problem, Burch noted, is that a scarcity of data makes it difficult to evaluate the fairness and efficacy of MDL outcomes, since settlements often remain confidential. She gave particular praise to CCJ’s Aggregate Litigation Data Project, which aims to increase transparency around MDLs by putting together data templates to standardize the data collected by claims administrators. “We absolutely need more transparency on these cases on the back end and on the front end,” Burch said.
Selected quotes from the discussion:
Elizabeth Burch: “It worries me that settlement has become the end goal, rather than trial. You know, I think that if judges are focused on the sort of traditional path to trial, that settlements will occur along the way, but if judges are wholly settlement-focused, then that becomes the end game [and] the litigation sort of proceeds apace. And it ends up that you may not have as much merits-related motions that are focused on airing good claims from the bad claims, so to speak.”
Chris Seeger: “There is only one road, there is one path where everyone recovers, and that’s through a global settlement. The other path, the alternative, which is fine—if you are representing clients and you want to take it, it would be fine—is the trial path. I don’t know how fast judges in this country can try a hundred, or ten or twenty thousand cases. If every one of them were to go to trial, my sense is that the system might collapse under that weight.”
Posted January 15, 2021