13. Multidistrict Litigation

• Pages: 263-284
• Author: Richard C. Beaulieu,Diane Flannery,Andrew F. Gann Jr.,Sylvia Macon Kastens

13

Multidistrict Litigation

Richard C. Beaulieu, Diane Flannery,

Andrew F. Gann Jr., and Sylvia Macon Kastens1

As the spread of a contagion, epidemic, or pandemic expands,

the likelihood of multiple lawsuits in multiple jurisdictions

increases. Although each individual case may be properly

brought in that jurisdiction, simultaneous discovery and litiga-

tion in multiple forums may lead to signicant costs and inef-

ciencies. The multidistrict litigation docket (“MDL”) is designed

to address those exact issues. This chapter explains that process,

how cases are brought within its scope, and the advantages that

are provided by its unique style of case management.

When plaintiffs in multiple federal districts allege infections

stemming from the same outbreak, the question of whether an

MDL is warranted becomes inevitable. MDLs allow cases pending in

different federal courts that contain common questions of fact to be

consolidated for pretrial proceedings. An MDL is the consolidation

of several actions, which can include class or mass actions, into one

1. Diane Flannery is a litigation partner at McGuireWoods LLP. Richard Beaulieu

is a litigation partner at McGuireWoods LLP. Andrew Gann Jr. is a litigator at

McGuireWoods LLP. Sylvia Macon Kastens is a litigator at McGuireWoods LLP.

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docket. In recent years, it has become more difcult to bring class

action lawsuits that have personal injury claims, therefore, the use

of MDLs has become an increasingly common tool in complex tort

litigation.2

Unlike typical personal injury cases that are highly individual-

ized, outbreak litigation involves several individuals who allege they

were injured by the same defective product or premises. This focus

on the defendant’s conduct makes outbreak litigation a prime can-

didate for an MDL. For example, consider a complaint arising out

of the COVID- 19 pandemic.3 On April 4, 2020, two plaintiffs led

a complaint alleging that the defendant cruise line “decided to sail

on March 8, 2020, despite their knowledge of the signicant risk of

harm to their passengers and crew members, in light of their three

prior voyages on other ships that resulted in outbreaks of the disease

in catastrophic proportions.”4 Based on this conduct, the plaintiffs

alleged that the defendant “expos[ed] them to actual risk of imme-

diate physical injury, [causing] Plaintiffs [to be] extremely ill and

suffer[] from emotional distress, as they remained quarantined in

their homes, hoping for a recovery.”5 Assuming, hypothetically, that

numerous other cruise passengers from various cruise ships also sue

based on similar allegations—allegations related to the defendant’s

actions—throughout the United States, it could arguably serve as a

basis for forming an MDL.

The benets of an MDL, both for plaintiffs and for defendants,

often outweigh the negatives. However, candidates for an MDL are

evaluated on a case- by- case basis. This chapter discusses the basics

of MDLs, including how they are formed and what they include,

and also provides strategic advice for whether your case is eligible

for an MDL, and ultimately whether an MDL would benet your

client.

2. See Jeremy T. Grabill, The Pesky Persistence of Class Action Tolling in Mass Tort

Multidistrict Litigation, 74 L. L. R. 433, 435–37 (2014).

3. See Birkenholz, et al. v. Princess Cruise Lines Ltd., 2:20- cv- 03167, Doc. 1 (C.D.

Cal. 2020).

4. Id. at 3.

5. Id. at 6 ¶ 19. On August 21, 2020, the district court dismissed the Complaint

with leave to amend for failure to allege sufcient causation. See 2:20- cv-

03167, Doc. 29 at 8.

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