A recent report by the U.S. Chamber Institute for Legal Reform, “MDL Proceedings: Eliminating the Chaff,” highlights issues compromising the fairness and efficiency of multidistrict litigation (“MDL”) proceedings, including inadequate vetting of cases by plaintiffs’ counsel, proceedings proliferated by claims with little or no scientific support, and the use of MDL proceedings to force settlements that do not account for the merits of individual claims.
Recommended best practices for making MDL proceedings fairer, more efficient, and less expensive include:
Requiring, at the start of the MDL proceedings, a licensed medical doctor to certify in a notice of diagnosis that the doctor had examined the plaintiff and diagnosed an injury or condition related to the cause alleged in the complaint;
Requiring plaintiffs to provide basic information about their claims, such as when and why the plaintiff used the product at issue and what injury the plaintiff allegedly sustained, in sworn plaintiff fact sheets. The Report notes that plaintiff fact sheets should be accompanied by disclosure of medical records and completed records authorizations, and recommends that MDL courts enforce time limitations for submitting fact sheets and specify sanctions for fact sheets that are incomplete or inaccurate;
Ensuring individual consideration of the merits of all claims in the MDL proceeding through the early use of Lone Pine orders requiring plaintiffs to submit evidence, such as an independent physician’s affidavit, supporting their theory of injury and causation;
Fully working-up a small but representative sample of cases in the MDL with intensive fact and expert discovery, the results of which would be used for dispositive Daubert and summary judgment motions, followed by bellwether trials if necessary; and,
The full report can be found by clicking here.