Multidistrict Litigation, Mass Torts, and Average Vermonters: Can They Find the Legal Expertise They Need?

• Citation: Vol. 50 No. 1
• Publication year: 2024

Multidistrict Litigation, Mass Torts, and Average Vermonters: Can They Find the Legal Expertise They Need? Vol. 50 No. 1 Pg. 28 Vermont Bar Journal March 2024

by Adam P Bergeron, Esq.

The concept of mass tort multidistrict litigation (MDL) may be unfamiliar to many attorneys, and especially so in Vermont. Until recent years, law schools did not really teach about these subjects and law professors did not write much about them either.^[1] Anecdotally, Google searches show a dearth of Vermont attorneys offering representation in mass tort MDL cases, as well as a lack of Vermont-based CLE programs covering these topics. In response to that observation, this article seeks to provide a basic overview of mass tort multidistrict litigation and then explore the question of whether Vermonters have adequate access to legal representation for these types of cases.

So, what are mass torts? There is no agreed-upon definition but generally mass tort cases involve numerous individual plaintiffs alleging injuries caused by a common act or omission.^[2] Usually, these cases involve products, and often those products are medications—Tylenol, for instance.^[3] But there are many types of products that have caused mass tort injuries, from a onewheeled electric skateboard^[4] to earplugs,^[5]social media apps,^[6] ride-sharing apps,^[7] infant formula,^[8] vaping devices,^[9] and the list goes on. As one author succinctly put it, mass torts are "primarily personal injury claims arising out of use of or exposure to products."^[10]

And, what about MDL? To understand what an MDL is, it is helpful to understand what it is not—it is not a class action.^[11] In an MDL case, individual plaintiffs each file their own individual lawsuit, which is quite different from a class action where one plaintiff files one lawsuit to represent the interests of an entire class of people.^[12] By way of example, the 3M earplug MDL involved a staggering 250,000-plus individually filed lawsuits.^[13] However, one nuance to this procedure is that a class action can be filed in an MDL alongside the individual claimants, but the main point stands: MDL cases involve lots and lots of lawsuits.^[14]

Naturally, the next question is how can attorneys and courts possibly handle many thousands of individual lawsuits proceeding in tandem, each with its own docket, discovery, and motion practice? The answer is found in the federal MDL statute, 28 U.S.C. § 1407, enacted by a 1968 Congressional Act "[t]o provide for the temporary transfer to a single district for coordinated or consolidated pretrial proceedings of civil actions pending in different districts which involve one or more common questions of fact."^[15] This legislation, originally conceived in the wake of a flood of antitrust cases, has become the litigation vehicle for the modern-day mass tort case.^[16]Some commentators even refer to the time after the early 2000s as the "post-class action era" on account of MDLs becoming the preferred way for courts and litigants to handle mass tort cases.^[17]

At the heart of the MDL statute is the Judicial Panel on Multidistrict Litigation (JPML). The panel consists of seven circuit and district court judges who are authorized to transfer cases pending in multiple federal district courts to a single court for "coordinated or consolidated pretrial proceedings."^[18] In effect, this means that if the panel so orders, then individual cases filed in federal courts around the country are transferred—whether the litigants want to be transferred or not—to one federal court where one judge will oversee pretrial discovery and motions.

After consolidation in the transferee court, the MDL will have its own case number and docket just like any other lawsuit, and the judge will appoint a group of plaintiffs' attorneys to perform "common benefit" work on behalf of all plaintiffs in the MDL.^[19] The case will then proceed on a schedule through discovery and dispositive motions, usually with a heavy emphasis on experts and common questions of negligence and causation.^[20]

While the statute provides for cases to remand back to transferor courts at the conclusion of pretrial proceedings,^[21] thus envisioning individual trials in the home court, the...