Rules 4 MDLs:
Calculating the Case
EMBARGOED UNTIL 12AM EDT
ON THURSDAY, OCTOBER 4, 2018

About the Report
Lawyers for Civil Justice (LCJ), a national coalition of defense trial lawyer organizations, lawfirms, and corporations, created this report relying on data from the Judicial Panel on
Multidistrict Litigation and United States Courts.
Many of the present Federal Rules of Civil Procedure were never intended for MDLs anddon’t practically apply in these proceedings, particularly those with hundreds or eventhousands of individual cases. As a result, courts overseeing these MDLs often employ ad
hoc procedures that suffer from a lack of clarity, uniformity, and predictability that therules are supposed to provide for all civil cases.
Overall, there are six areas in the FRCP that LCJ recommends should be adapted to thepractical realities of MDL cases: pleadings, dismissal, joinder, required discovery
disclosures, trial, and appellate review.
2

FRCP Are Supposed to Cover All Cases…
The Federal Rules of Civil Procedure
Rule 1 – Scope and Purpose“These rules govern the procedure in all civil actions and proceedingsin the United States district courts…They should be construed,administered, and employed by the court and the parties to secure thejust, speedy, and inexpensive determination of every action andproceeding.”…Here are the facts
3

Cases in MDLs Have Increased More Than 4X Since 1992 1
158,589

180,000# of Pending MDL Cases

160,000
140,000
120,000
100,000
80,00037,25360,00040,00020,000
01992

1996

2000

2004

2008

Year 2

2012

2016

2017

2018
4

Cases in MDLs Represent 47% of Civil Caseload

266,108 civil cases werepending in the federal courtsystem at end of FY 2017 1

124,202 of these cases werepending in 256 MDLs 2

5

Percentage of Civil Caseload in MDLs Nearly Tripled in 15 Years

2002 12014 22017 3

6

Products Liability Cases Have Dominated MDLs Since 1992
% PL Cases of Pending MDLs

120%
100%

93%

94%

96%

96%

93%

94%

89%

80%
60%

Before 1992, PL cases were only afraction of all MDL cases

40%
20%
0%

Products Liability cases have madeup about 90% or more of cases
pending in MDLs since 1992 21%.7%19901991

1992

199319961997200120092017

Turning point was the asbestos andsilicon breast implant litigation in1991 and 1992, respectively

Year 1

7

Products Liability Cases Fuel MDL GrowthTotal Pending MDL Cases

Pending PL MDL Cases

140,000

MDL cases have more than tripled
between FY 1992 and FY 2017,
increasing by 86,949 cases 2# of MDL Cases

120,000
100,000

Over this same period, PL cases inMDLs also have more than tripled,increasing by 76,398 cases 3

80,00060,00040,000

The growth in MDL PL cases alone
accounts for almost 88% of thegrowth in MDL cases since FY 1992

20,0000199220012009

2017

Year 18

As of FY17, Products Liability MDL Cases Are 42% of Civil Caseload

42%
PL MDL Cases(110,958) 1

58%
Other Civil Cases(155,150) 2

Civil Caseload as of FY17: 266,108 3
9Number of Large MDLs Has Surged to an All-Time HighMDLs with 1000+ Cases

As of September 2018, the142,114 pending cases in
24 large MDLs represented
89.6% of all pending cases
in MDLs 2
As of the end of fiscal year
2017, large MDLs with over
1,000 pending cases madeup 40.2% of the entire civildocket 3Year 1102% of Judges Oversee 40% of Civil Caseload as of FY17107,045 cases in18 largest MDLs 1

15 judgesof 667 judgeships 2

As of September 2018, 142,114 cases in 24 largest MDLs are overseen by 21 judges 3

11MDL Cases Make Up Nearly Half of the Civil Caseload
Percentage of Civil Caseload At End of FY17

Total cases in MDLs 1

PL cases in MDLs 2

Cases in large MDLs 312

Vioxx Case Study: More Than 30% of Claims
Failed After Settlement
Following settlement of the Vioxx MDL, more than 30% of those who filed lawsuits failed to satisfy
basic requirements of the court necessary to collect their claims. The requirements were (i) aqualifying injury, (ii) minimum use of Vioxx , and (iii) use of the medicine within a proximate time.
31.6%
Claims unable to satisfy
requirements(15,287) 1
68.4%
Satisfied claims
requirements(33,075) 2

Total claims: 48,362 3

13

Endnotes (I)
SLIDE 4
1 http://www.jpml.uscourts.gov/statistics-info
http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Actions_Pending-September-17-2018.pdf
2 JPML data beginning 1992 is as of fiscal year September 30. 2018 data is as of September 17. Years in graph are not to scale.
SLIDE 5

1 Based on Duke Law Center methodology. Civil cases include all cases minus Social Security and prisoner cases, except death penalty cases.

http://www.uscourts.gov/sites/default/files/data_tables/jb_c3a_0930.2017.pdf

2 http://www.jpml.uscourts.gov/sites/jpml/files/JPML_Statistical_Analysis_of_Multidistrict_Litigation-FY-2017.pdf

SLIDE 6
1 https://judicialstudies.duke.edu/sites/default/files/centers/judicialstudies/MDL_Standards_and_Best_Practices_2014-REVISED.pdf
2 Ibid3 http://www.jpml.uscourts.gov/sites/jpml/files/JPML_Statistical_Analysis_of_Multidistrict_Litigation-FY-2017.pdf
SLIDE 7
1 http://www.jpml.uscourts.gov/statistics-info. JPML data end date before 1992 is June 30; after 1992 is fiscal year September 30. Years in graph are not to scale.
2 JPML’s 1991 data does not include the asbestos MDL transferred in July 1991.
SLIDE 8

1 http://www.jpml.uscourts.gov/statistics-info (FY 1992 - 2017)
2 Ibid
3 IbidSLIDE 91 http://www.jpml.uscourts.gov/sites/jpml/files/JPML_Statistical_Analysis_of_Multidistrict_Litigation-FY-2017.pdf
2 Based on Duke Law Center methodology. Civil cases include all cases minus Social Security and prisoner cases, except death penalty cases.

http://www.uscourts.gov/sites/default/files/data_tables/jb_c3a_0930.2017.pdf

3 IbidEndnotes (II)SLIDE 10
1 JPML data end date before 1992 is June 30; after 1992 is fiscal year September 30; 2018 data is as of September 17. http://www.jpml.uscourts.gov/statistics-info
2 http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Actions_Pending-September-17-2018.pdf
3 Based on Duke Law Center methodology. Civil cases include all cases minus Social Security and prisoner cases, except death penalty cases.
http://www.uscourts.gov/sites/default/files/data_tables/jb_c3a_0930.2017.pdf
http://www.jpml.uscourts.gov/sites/jpml/files/JPML_Statistical_Analysis_of_Multidistrict_Litigation-FY-2017.pdf
SLIDE 11
1 http://www.jpml.uscourts.gov/sites/jpml/files/JPML_Statistical_Analysis_of_Multidistrict_Litigation-FY-2017.pdf
2 http://www.uscourts.gov/sites/default/files/districtauth.pdf
3 http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-September-17-2018.pdf
SLIDE 12
1 Based on Duke Law Center methodology. Civil cases include all cases minus Social Security and prisoner cases, except death penalty cases.
http://www.uscourts.gov/sites/default/files/data_tables/jb_c3a_0930.2017.pdfhttp://www.jpml.uscourts.gov/sites/jpml/files/JPML_Statistical_Analysis_of_Multidistrict_Litig
ation-FY-2017.pdf
2 Ibid
3 IbidSLIDE 13

1 Vioxx Claims Administrator Court Report No. 29, July 27, 2010, p. 23.
2 Ibid
3 Ibid