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

Transcription

1 Rules 4 MDLs: Calculating the Case EMBARGOED UNTIL AM EDT ON THURSDAY, OCTOBER 4, 08

2 About the Report Lawyers for Civil Justice (LCJ), a national coalition of defense trial lawyer organizations, law firms, 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 and don t practically apply in these proceedings, particularly those with hundreds or even thousands 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 the rules are supposed to provide for all civil cases. Overall, there are six areas in the FRCP that LCJ recommends should be adapted to the practical realities of MDL cases: pleadings, dismissal, joinder, required discovery disclosures, trial, and appellate review.

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

4 Cases in MDLs Have Increased More Than 4X Since 99 80,000 58,589 60,000 # of Pending MDL Cases 40,000 0,000 00,000 80,000 60,000 40,000 7,5 0, Year 4

5 Cases in MDLs Represent 47% of Civil Caseload 66,08 civil cases were pending in the federal court system at end of FY 07 4,0 of these cases were pending in 56 MDLs 5

6 Percentage of Civil Caseload in MDLs Nearly Tripled in 5 Years

7 Products Liability Cases Have Dominated MDLs Since 99 0% % PL Cases of Pending MDLs 00% 80% 60% 40% 0% 0% 9% 94% 96% 96% 9% 94% 89% %.7% Year Products Liability cases have made up about 90% or more of cases pending in MDLs since 99 Before 99, PL cases were only a fraction of all MDL cases Turning point was the asbestos and silicon breast implant litigation in 99 and 99, respectively 7

8 Products Liability Cases Fuel MDL Growth # of MDL Cases 40,000 0,000 00,000 80,000 60,000 40,000 0,000 0 Total Pending MDL Cases Pending PL MDL Cases Year MDL cases have more than tripled between FY 99 and FY 07, increasing by 86,949 cases Over this same period, PL cases in MDLs also have more than tripled, increasing by 76,98 cases The growth in MDL PL cases alone accounts for almost 88% of the growth in MDL cases since FY 99 8

9 As of FY7, Products Liability MDL Cases Are 4% of Civil Caseload 4% PL MDL Cases (0,958) 58% Other Civil Cases (55,50) Civil Caseload as of FY7: 66,08 9

10 Number of Large MDLs Has Surged to an All-Time High MDLs with 000+ Cases As of September 08, the 4,4 pending cases in 4 large MDLs represented 89.6% of all pending cases in MDLs As of the end of fiscal year 07, large MDLs with over,000 pending cases made up 40.% of the entire civil docket Year 0

11 % of Judges Oversee 40% of Civil Caseload as of FY7 07,045 cases in 5 judges 8 largest MDLs of 667 judgeships As of September 08, 4,4 cases in 4 largest MDLs are overseen by judges

12 Total cases in MDLs PL cases in MDLs Cases in large MDLs MDL Cases Make Up Nearly Half of the Civil Caseload Percentage of Civil Caseload At End of FY7

13 Vioxx Case Study: More Than 0% of Claims Failed After Settlement Following settlement of the Vioxx MDL, more than 0% of those who filed lawsuits failed to satisfy basic requirements of the court necessary to collect their claims. The requirements were (i) a qualifying injury, (ii) minimum use of Vioxx, and (iii) use of the medicine within a proximate time..6% Claims unable to satisfy requirements (5,87) 68.4% Satisfied claims requirements (,075) Total claims: 48,6

14 Endnotes (I) SLIDE JPML data beginning 99 is as of fiscal year September data is as of September 7. Years in graph are not to scale. SLIDE 5 Based on Duke Law Center methodology. Civil cases include all cases minus Social Security and prisoner cases, except death penalty cases. SLIDE SLIDE 7 JPML data end date before 99 is June 0; after 99 is fiscal year September 0. Years in graph are not to scale. JPML s 99 data does not include the asbestos MDL transferred in July 99. SLIDE 8 (FY 99-07) SLIDE 9 Based on Duke Law Center methodology. Civil cases include all cases minus Social Security and prisoner cases, except death penalty cases.

15 Endnotes (II) SLIDE 0 JPML data end date before 99 is June 0; after 99 is fiscal year September 0; 08 data is as of September Based on Duke Law Center methodology. Civil cases include all cases minus Social Security and prisoner cases, except death penalty cases. SLIDE SLIDE Based on Duke Law Center methodology. Civil cases include all cases minus Social Security and prisoner cases, except death penalty cases. ation-fy-07.pdf SLIDE Vioxx Claims Administrator Court Report No. 9, July 7, 00, p..