October 26, 2015

ILR Summit Series: Has Multidistrict Litigation become a Lawsuit Magnet?

The bigger the adversary, the more likely you are to avoid the fight. That certainly is the case with multidistrict litigation (MDL). What started as a procedural tool meant to efficiently consolidate litigation is now being used by some plaintiffs’ lawyers to bolster suits with dubious claims and scare companies into settling.

In his research paper, MDL Proceedings: Eliminating the Chaff, John Beisner, a Partner at Skadden, Arps, Slate, Meagher & Flom LLP, looks at the aggressive advertising plaintiffs’ counsel uses to attract clients for MDL, regardless of claim merit, and the subsequent pressure placed on defendants.

John answers questions below about MDL and how baseless claims can be weeded out. Read his insights and learn more about this research and other emerging trends in litigation by attending our 16th Annual Legal Reform Summit on October 27th.

What are some of the current problems affecting Multidistrict litigation?

Congress enacted the MDL statute years ago so that overlapping cases could be centralized before a single judge for coordinated pre-trial proceedings, generating much-needed efficiencies for parties and courts. Unfortunately, rather than use this mechanism to efficiently resolve cases and conserve resources, plaintiffs’ attorneys are increasingly using MDLs to warehouse meritless claims in the hopes that the sheer number of cases will pressure defendants into settlements.

How does lead generation work?

Lead generation companies are businesses that sell client referrals to lawyers for large sums of money. Because the owners of these firms are not lawyers, lead generation companies aren’t subject to the same ethical rules that limit lawyer advertising. This has resulted in controversial practices, including aggressive communication strategies that often target individuals who have no desire to engage in litigation.

What concerns arise from mass medical screenings?

Mass medical screenings are large-scale diagnoses of individuals who never knew they had a disease. These cursory examinations were rampant in the silica and welding fume litigation. In the silica litigation, for example, ninety-nine percent of the more than 9,000 plaintiffs involved in the litigation were diagnosed by the same nine doctors, and one of those doctors performed 1,239 diagnostic evaluations in 72 hours – an average of less than 4 minutes per evaluation. The problem with these dubious screenings is that they often result in inaccurate diagnoses. Indeed, in the silica and welding fume litigations, these screenings generated bogus and even fraudulent claims.

What is one way baseless claims can be weeded out?

One way to weed out baseless claims is expanding the use of plaintiff fact sheets and Lone Pine orders that would require plaintiffs at the outset of litigation to satisfy a minimum evidentiary threshold before the parties proceed to expensive and burdensome discovery. While fact sheets and Lone Pine have become increasingly popular in MDLs, they are often imposed as requirements late in the litigation. MDL courts should consider using them earlier in the litigation to maximize their value and should also impose serious sanctions for failure to comply with them, including the dismissal of cases.

Want to learn more? Register here for the Summit.

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