In law, the benefits of bundling come when large numbers of similar cases are grouped together for expeditious resolution by a single judge. Bundling cases that turn on the same legal or factual determination saves resources, time, and expenses.
There are essentially three modalities to bundle similar legal matters, often arising in toxic tort or securities cases
- Multi-district litigation (MDL) in federal court
- Joint or consolidated actions in state court
- Class actions brought in either venue.
So, what’s the difference?
Class actions
“A class action …. permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group, or "class"…. [This], …device allows courts to manage lawsuits that would otherwise be unmanageable.”
The focus is on expedience and efficiency. The tradeoff is that the plaintiffs lose their individuality and merge into a class where a named representative(s) represents their interests. To bring a class action:
- Class members must be so numerous that ordinary individual joinder is impracticable.
- A common question of law or fact must unite the class.
- The class representatives’ claims and defenses must be typical of the class
- The representative must have an adequate basis to represent the interests of the class.
If these prerequisites are met, a class action can be maintained if prosecuting separate actions would create inconsistent verdicts or establish different/incompatible standards of care, and individual class members adequately represent the interests of the class.
In theory, the mechanism sounds wonderful, but as legal scholars Scott Dodson and Joseph Grund note:
“Class actions remain one of the most controversial forms of civil litigation in the federal system.”
Among other reasons, in the class action, one (or a few) representatives litigate on behalf of the entire group; individual concerns are not addressed, and judgments or settlements binds all members without individual opportunity to sign on or reject.
They warn of the risk of collusion and note special precautions taken to protect the class:
“Class-action settlements also receive special attention because of the risks of collusion benefitting defendants, named representatives, and their counsel, all at the expense of unnamed class members, who have little meaningful opportunity to participate in the litigation or escape its binding nature .”[emphasis added]
One safeguard requires class action settlements to be approved by the court, although, as we have seen with the Purdue settlement, where the appellate process can upend meaningful resolution.
Nevertheless, the expedience of litigating in federal court, where multiple issues applying to thousands of claimants can be addressed simultaneously, is an effective lure. Federal courts also boast “rocket dockets,” which resolve cases in less time than it would take in state court. The cost-effectiveness of trying expensive expert-heavy litigation in one venue provides valuable offsets and incentives. Even an adverse verdict is easier to address – only one appeal is necessary. And sometimes, as with the opioid cases, there is no other viable alternative.
Multi-District Litigation
When the individual cases involve a series of issues where only one or a few intersect, the Multi-District Litigation (MDL) procedure can be used. This vehicle exists only in federal court and consolidates cases from around the country in one judicial venue to address the identical issue(s).
“MDLs are often used when individuals’ circumstances are too different from one another for the case to proceed as a class action…. MDLs have been created when individuals have been injured as a result of using defective drugs or consumer products. MDLs can be created when cases have been filed regarding the same defective product against the same or similar defendants in different federal jurisdictions. There can exist many differences in the way that people purchase, use and react to a defective product.”
The MDL decision binds everyone signed into that litigation, but when it comes to settlement, the individual plaintiffs, who retain their individuality, have greater control. Often, MDLs determine the issue of general causation, i.e., whether a particular substance can cause a specific cancer in doses commonly experienced, applicable to everyone in the group. The court does not address whether an individual’s cancer was caused by the alleged toxin based on individual exposures; that determination must be made in a separate trial.
However, federal court decisions are not binding on state courts where similar matters are brought up, as we’ve seen with Florida MDL Zantac cases. Here, Judge Robin Rosenberg tossed some 50,000 cases, finding that the testimony of the plaintiffs’ ten experts did not satisfy legal standards. This finding was outright rejected in a Delaware state court, even though both courts use the Daubert standard to evaluate scientific evidence.
Consolidated Cases (Joint Trials)
Another mechanism available to plaintiffs is bundling the cases together in state court. Here, aggregated as consolidated cases or joint trials, identical issues are resolved together under state rules. While cases proceed more slowly, there are generally two benefits to plaintiffs to filing in state court.
One is that the judge cannot lower a verdict they deem excessive by the stroke of a pen, as can occur in federal courts under the doctrine of remittitur. Second is the looser application of the admissibility of scientific evidence. [1]
Some seven states still abide by the Frye standard, requiring bowing to scientific consensus. This rule benefits plaintiffs in some cases, such as the Round-Up litigation, where the IARC report provided a ready-made consensus regarding the probable carcinogenicity of glyphosate, useful in a Frye jurisdiction (e.g., Pennsylvania).
But even where Daubert is state law, requiring proof of the reliability of expert testimony and methodology, the state court judge is free to make his or her own resolution and disavow the federal court's findings. Thus, in the Zantac cases, the Delaware state court judge ruled that virtually the same type of evidence rejected by Judge Rosenberg was sufficient to support the 75,000 plaintiffs’ claims consolidated in her court.
Connecticut’s Zantac plaintiffs.
Here, both state and federal courts have jurisdiction over the matter.
“Each suit asserts virtually indistinguishable state-law personal injury claims stemming from usage of a gastrointestinal medication known as Zantac; each suit was brought by the same firm and against the same eight defendants.”
The plaintiffs desperately wanted to avoid federal jurisdiction (for the reason keep reading)and went to great lengths to do this. Filing nine different cases, each bearing a separate filing fee, each with less than 100 plaintiffs per suit, a trigger for federal jurisdiction, the plaintiffs carefully contrived their case to stay in state court. The defense valiantly fought to move the case to federal court, even appealing a lower court ruling, arguing that “Plaintiffs filed a “motion to consolidate” [which]… triggered federal jurisdiction by proposing a joint trial.”
The Second Circuit agreed with the plaintiffs and ruled that the deliberate maneuvering evidenced a clear intent to avoid federal jurisdiction.
Plaintiffs’ counsel is rather coy in their reasoning for their legal maneuvers:
“Juries can be fickle, and if you have to try nine cases nine times, you may get nine different results."
- Peter Bowman, a personal injury lawyer for BBB Attorneys
Hogwash. Why would the lawyers want the expense of trying the case nine times? Paying expert witnesses nine times? Risking the likelihood they will contradict each other and be embarrassed by these contradictions in other cases? No way. This was an (allowable) exercise in forum shopping – to garner the best shot at admitting the scientific evidence. One wonders if the plaintiffs are planning on nine Daubert hearings to evaluate the scientific evidence – and if so, their best-laid plans may come to haunt them.
“The court found that the plaintiffs' motion, when read in context, proposed only pre-trial consolidation.”
What the state court judge will do in terms of rejecting or accepting the critical scientific evidence remains to be seen. And whether a Daubert hearing counts as a pre-trial proceeding – providing the plaintiffs with their favored playing field, will be one issue we will yet see litigated.
[1] A third reason for the MDL vs. state dichotomy is internecine warfare among plaintiffs’ attorneys (e.g., arguing who should be lead counsel or what claims should go forward. In the Zantac cases, the MDL only addressed five cancers with the most solid evidence; plaintiffs' attorneys wanting to pursue five other cancers high-tailed it to state court- where they prevailed, at least for now.)
