Previously posted on SSRN.

Abstract

With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure plaintiffs can present evidence, participate, and tell their story—or risk inaccurate outcomes and judicial illegitimacy. But MDL’s efficiency mantra trumps all, transferring plaintiffs with related facts away from their preferred venue, centralizing their cases with hundreds of others before a judge in a faraway forum, replacing their chosen attorneys with a judicially selected roster of lead lawyers, depersonalizing plaintiffs’ narratives, and settling their cases en masse. Though MDL makes them feel like “just another number,” one-shot plaintiffs can say little in response: many are sick, bankrupt, and silenced by private settlements’ confidentiality provisions.

No longer. In conducting the first ever MDL procedural justice study, we spoke with plaintiffs from 42 different states with diverse backgrounds, educations, and races. Their cases originated in 32 different state and federal courts, and 295 lawyers from 145 law firms represented them. Although 54% of their attorneys (or someone from their firm) led the MDLs, lawyers did little for the clients they stockpiled. When it came to their attorney experience, 64% of participants were somewhat or deeply dissatisfied, 50% did not feel that they could trust their attorney, 59% received few or no status updates, and 67% did not understand what was happening with their lawsuit.

Nor did MDLs feel efficient or accessible. They lasted almost four times as long as the average civil case, with 73% of respondents finding the delay unreasonable and only 1.3% ever attending a hearing. And yet, nearly 60% would have been willing to wait longer to tell their story—some up to five years more. Without those opportunities for input, only 25% thought claims administrators possessed or relied on accurate information, which raises questions about accuracy, substantive outcomes, and the system’s ability to fulfill tort-law objectives. And though plaintiffs had many goals, from compensation to protecting others to holding corporations accountable, a mere 1.8% of all participants felt their lawsuit accomplished what they hoped.

One put it simply, “Our judicial process is very broken.” MDL needs reform. We ignite the discussion with proposals to increase transparency through mandatory public closing statements that reveal attorneys’ fees, costs, and settlement amounts; voice, access, and accuracy through the public’s newfound familiarity with technology; and due process by appointing separate lead lawyers to represent plaintiffs with conflicting interests.

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