A U.S. judicial panel on Tuesday proposed a new rule that would govern how judges organize the initial stages of federal mass torts cases and encourage parties to exchange information about their claims and defenses early on.
The federal judiciary's Advisory Committee on Civil Rules voted in favor of publishing a draft rule for public comment that would apply to federal multidistrict litigations across the country, affecting hundreds and thousands of consolidated lawsuits against small and large companies.
The proposal would mark the first time the Federal Rules of Civil Procedure would specifically address MDLs, which by 2021 had grown to comprise over 70% of the federal civil caseload, according to the defense-oriented group Lawyers for Civil Justice.
The draft rule, which now goes to the Judicial Conference's Committee on Rules of Practice and Procedure Meeting for consideration, has been years in the making, with a subcommittee first assigned to study the need for MDL-specific rules in 2017.
U.S. District Judge R. David Proctor, the subcommittee's chair, said while some judges argued no rule was needed, it was time to offer more guidance to judges tasked with managing some of the most complex cases in U.S. courts.
"This would benefit transferee judges in getting a case off the runway and getting it started on the right path," the Alabama-based judge said.
The proposed rule in some ways formalizes practices that have become common in MDLs.
It says judges should schedule initial hearings to develop management plans once they are assigned cases by the Judicial Panel on Multidistrict Litigation, and encourages the appointment of plaintiffs' leadership counsel.
The rule also encourages parties to exchange information about the factual bases for their claims and defenses early in the litigation, which business groups say could help screen out "meritless" claims early on.
Top legal officers at companies like 3M Co and Johnson & Johnson, which each face thousands of lawsuits over combat earplugs and talc-containing powers, respectively, had urged the judiciary to adopt a policy to allow for early case culling.
Alex Dahl, the general counsel of the Lawyers for Civil Justice, whose members include companies and defense bar groups, in an interview said in the biggest pending MDLs, many of the claims do not early on get investigated to determine if the plaintiffs actually used the product or were injured.
"The presence of these thousands of uninvestigated claims leads to real problems for judges managing case and for parties trying to resolve the litigation," he said.
The committee received suggestions not just from LCJ but the American Association of Justice, the plaintiffs' bar main advocacy group. Sue Steinman, its senior director of policy, in a statement said the AAJ "will continue to engage in this rulemaking process."