Congress designed federal multidistrict litigation (“MDL”) to “promote the just and efficient conduct” of civil actions pending in different districts. By just about any measure, though, the litigation device has failed to serve its purpose, most notably in some pharmaceutical and medical device products liability litigation. Instead of achieving efficiency, MDLs have encouraged plaintiffs’ lawyers to file a massive number of unmeritorious claims. Repeat-player plaintiffs’ counsel have assembled organizations dedicated to the solicitation, funding, and prosecution of claims in products liability MDLs. Television viewers are now familiar with the pitch—“you may be entitled to compensation.” Filings have exploded—from October 2017 to October 2018, the MDL Panel transferred 4,671 actions, while 41,517 actions were filed directly in MDL courts. As of September 30, 2018, nearly 52% of all pending federal civil cases were in MDLs.
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