Ever since the In Re NuvaRing Prods. Liab. Litig. MDL, more than a decade ago, we have had concerns about the use of master pleadings in MDLs. On one hand, the requirement to file a master complaint, and answer, seems to offer some efficiency gains and ease the administrative burden on transferee courts. On the
MDL
Annual Update on Civil Justice
Flagging for our readers interested in civil justice reform, the 2020 Federalist Society Civil Justice Update of civil justice issues by my partner Mark Behrens, Esq.
Part I focuses on broad trends. Part II discusses 2020 federal legislation and amendments to federal court rules that take effect today. Part III summarizes liability law changes at…
MDL Revises “Bellwether” Trial Process
“Bellwether” cases are an important case management tool in many MDL proceedings, which typically include numerous individual claims. A bellwether is the sheep that leads the flock, and in an MDL, these lead “test” cases may shed important light on how a jury will react to the parties’ themes, how credible and persuasive their experts are, and how the court views key legal issues. This information can at times be as, if not more, important as the amount of the actual verdict. But to shed meaningful light, the bellwether trials must produce a sufficient number of outcomes to provide relevant guidance, given the variety of fact patterns in a typical MDL. Outcomes in this context might include motions practice, but often does really mean verdicts.
Recently, the judge overseeing the device MDL, In re Cook Filter MDL (amended bellwether), No. 1:14-ml-02570 (MDL S.D. Ind.)(Third Amended CMO #27, 10/26/2020), has had to confront two issues affecting the litigation’s bellwether case management plan. The first three bellwether cases ended before trial, and now the pandemic is impacting how a new bellwether trial might proceed. Accordingly, he issued an order amending the bellwether case process, in essence asking the parties to provide additional information for the selection of viable and appropriate bellwethers.…
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JPML Denies Centralization of Covid-19 Insurance Litigation
From afar it may seem that any large number of federal cases can garner MDL status, but it only seems that way. Recently, for example, the Judicial Panel on Multidistrict Litigation rejected petitions to coordinate multiple cases filed by businesses seeking insurance coverage for alleged losses during the COVID-19 pandemic. There were two groups of…