The Pesky Persistence of Class Action Tolling in Mass Tort Multidistrict Litigation

Notwithstanding the fact that personal injury claims are no longer certified as class actions for purposes of adjudication (i.e., as “litigation classes”), the class action tolling doctrine is alive and well in various jurisdictions across the country, and it is a feature of state law that transferee courts must grapple with in mass tort multidistrict litigations (MDLs). The pesky persistence of the class action tolling doctrine allows individual statutes of limitations for potential plaintiffs to be tolled in many jurisdictions by virtue of the mere filing of a putative personal injury class action in a related case. In contemporary mass tort MDLs, which are increasingly being resolved by non-class aggregate settlements, it is simply not true that “a little tolling never hurt anyone.” Rather, by permitting and/or encouraging potential plaintiffs to sit in the shadows and not come forward to assert their claims, the class action tolling doctrine can delay and altogether undermine efforts to resolve modern mass tort litigation by creating disabling uncertainty about current and future plaintiff populations. This Article argues that transferee courts should reexamine their current tendency to defer consideration of class action issues in mass tort MDLs; instead, transferee courts should issue an “omnibus class action pretrial order” at the inception of any MDL that contains at least one putative personal injury class action. That omnibus order can rely on the long line of well-established precedent rejecting certification of personal injury litigation classes and should do at least four things: (i) strike all current and future personal injury class allegations from all current and future complaints in the MDL; (ii) deny all current and future requests for personal injury claims to be certified as litigation classes; (iii) Copyright 2014, by JEREMY T. GRABILL. * Associate, Phelps Dunbar LLP, New Orleans, Louisiana. J.D. 2006, Tulane University School of Law; B.A. 2003, Cornell University. By way of disclosure, from 2006 through 2008, I served as a law clerk to the Honorable Eldon E. Fallon, United States District Court for the Eastern District of Louisiana, during which time Judge Fallon presided over several of the cases referenced herein. More recently, I have been involved in the multidistrict litigation arising from the BP Deepwater Horizon oil spill as counsel for several of the so-called Emergency Responder and Clean-up Responder Defendants. The views expressed in this Article are mine alone and do not represent the views of my current or past employers, those firms’ clients, or the judge for whom I clerked. 434 LOUISIANA LAW REVIEW [Vol. 74 explicitly provide that the purpose of the order is to suspend any and all tolling of the applicable statute(s) of limitations that might otherwise occur as a result of the class action tolling doctrine; and (iv) make clear that the parties are not precluded from subsequently seeking certification of one or more settlement classes. Such an order would short-circuit any harmful impact the class action tolling doctrine might otherwise impose without precluding the parties from subsequently seeking to use the class action device to implement a global settlement. Ultimately, this is a modest modification of current MDL practice that should be implemented in mass tort cases.