Our readers interested in Multi-district Litigation may want to check out recent scholarship from Prof. Brian Fitzpatrick of Vanderbilt Law School.
In Many Minds, Many MDL Judges, 84 J. L. & Contemporary Prob. (2021, Forthcoming), the Professor asserts that the federal MDL statute may concentrate more power in the hands of a single person than any other part of our judicial system. A single judge can end up resolving hundreds, thousands, or even hundreds of thousands of individual cases. This has benefits—most notably efficient case processing, uniformity of results, and the facilitation of global peace—but it also has potential costs. In this essay , he argues that one of these costs could be less accurate adjudication of legal claims and defenses. Drawing on the “many-minds” literature that proceeds from the Condorcet Jury Theorem, he posits that the legal decision-making in MDLs could be improved if the cases were transferred to a panel of judges instead of just one judge. In large MDLs, the cost of increased judicial time could be outweighed by the benefit of increased accuracy. No law reform is needed to implement panels: it is already authorized by the current statute. He concludes that the MDL system has focused too single-mindedly on efficiency to the detriment of other procedural values.
Here at MassTortDefense, we are of the view that a number of procedural reforms would greatly improve the MDL system, including expanded appellate review opportunities and proper vetting of claims, reforming misuse of master pleadings and requiring disclosure of third party litigation funding.