The personal injury mass tort system has turned into a twisted game of blackjack, one where the players’ cards stay hidden, it costs almost nothing to play a hand, and the game never ends – all while the casino pays out millions of dollars in prizes.

That’s more or less the state of personal injury mass tort litigation in the federal court system, according to the latest edition of ILR Briefly. Once plaintiffs’ lawyers identify a perceived widespread injury, they can easily recruit thousands of claimants for thousands of lawsuits, which are then consolidated into multidistrict litigations overseen by a single judge.

In these circumstances, plaintiffs’ counsel have successfully argued that it’s too burdensome for them to provide (or even gather) basic information about each of the hundreds or thousands of cases in a given multidistrict litigation – meaning that there’s no way to tell how many of the cases they’ve filed may actually be meritless. Moreover, courts claim they lack the capacity to consider motions to dismiss individual cases. And defendants, for their part, are routinely faced with the choice of reaching a global settlement or risking bankruptcy.  

This state of affairs means that multidistrict litigation is an extremely attractive business model for plaintiffs’ lawyers, as the statistics cited in this Briefly indicate. As of July 2021, there were 368,078 pending cases consolidated in the roughly 50 active federal multidistrict litigations involving primarily personal injury claims. That’s two-thirds of all private civil cases pending in federal courts.

Clearly, this is an unsustainable dynamic, and it will only get worse if left uncorrected. This Briefly concludes with proposed safeguards that would bring greater transparency to multidistrict litigation proceedings, and help reduce the number of meritless claims clogging the federal docket. Congress and the Federal Rules Advisory Committee should seriously consider these commonsense procedures to restore fairness and efficiency to large-scale personal injury litigation in federal courts.


Benjamin Halperin, Skadden, Arps, Slate, Meagher & Flom LLP.