Kimberly D. Young Pens Article For DRI's The Voice

December 2, 2019

Excerpt from “Multidistrict Litigation: Continuing Efforts to Kick Baseless Claims:”

In 1968, Congress enacted 28 U.S.C. 1407, known as the Multidistrict Litigation (MDL) Act. The MDL Act created the Judicial Panel on Multidistrict Litigation, which is tasked with transferring pending civil actions that share a common question of fact from multiple jurisdictions to a single court for coordinated or consolidated pretrial proceedings. While the goal is to promote judicial efficiency, there are a number of challenges to achieving that goal.

First, there is the sheer volume of cases pending in MDLs. Nearly half of civil litigation in the United States is cases in MDLs, with the majority of these cases being product liability claims. Alison Frankel, Defense Group Argues New MDL Stats Prove Need to Change Rules for Mass Torts, 25 No. 09 WJCLA 08 (2018). The number of cases in an MDL means that meritless claims are often only discovered well into the litigation after significant expense to the defendants to weed out these claims.

Second, the MDL process and the attorney advertising that accompanies it tends to attract a significant number of baseless claims. As one judge stated,

[B]ased on fifteen years on the federal bench and a front-row seat as an MDL transferee judge on two separate occasions, the undersigned is convinced that MDL consolidation for products liability actions does have the unintended consequence of producing more new case filings of marginal merit in federal court, many of which would not have been filed otherwise.

In re Mentor Corp. Obtape Transobturator Sling Prods., MDL Docket No. 2004, 2016 U.S. Dist. Lexis 121608, at *7–8 (M.D. Ga. Sept. 7, 2016) (Land, J.). The goal of the plaintiff firms to achieve as large a global settlement as possible creates “incentives for the filing of cases that otherwise would not be filed if they had to stand on their own merit as a stand-alone action.” Id. at *5.

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Kimberly D. Young has been practicing law with Friday, Eldredge & Clark since 2003 and she concentrates her practice in the field of civil litigation, including products liability, intellectual property and premises liability. She has over a decade of experience representing electric and natural gas utilities in Arkansas, including the successful defense of catastrophic injury and wrongful death claims. While she has represented a diverse set of clients in personal injury litigation, most recently her focus has been in the area of products liability, including the defense of pharmaceutical and medical device manufacturers in multi-district litigation.