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More than 1,200 people have filed lawsuits against Johnson & Johnson over the company’s popular baby powder products, which Plaintiffs say cause ovarian cancer. While the vast majority of these cases are filed in state courts, a woman from Illinois has asked the Judicial Panel on Multi-District Litigation to bundle her own case with 10 others in the US District Court for the Southern District of Illinois.
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Court records indicate that only 11 lawsuits have been filed in federal courts at this time, ranging over 10 different district courts. In the eyes of some observers, that creates a problem.
Inconsistent rulings are a particular concern. What if two separate judges are faced with the same question, but make different decisions? Another issue is discovery. Isolated in disparate courts, each Plaintiff will have to demand documents and depositions from Johnson & Johnson individually, creating a significant burden not only for the Defendant, but also the court system.
Multi-District Litigation (MDL) was designed to solve these problems. If granted, the Plaintiff’s request would create an MDL devoted to talcum powder lawsuits. Multi-District Litigation is often seen as an acceleration of the legal process, allowing similar lawsuits to progress through pre-trial proceedings in tandem.
Efficiency is the key goal of setting up an MDL. After being transferred to a central court, the lawsuits come under the authority of a single federal judge. As we’ve seen, Illinois is the Plaintiff’s first choice of venue. But the ultimate decision is up to the Judicial Panel on Multi-District Litigation, a panel of federal judges. It should be noted from the outset that the JPML may not consider consolidation of this sort appropriate at all under the circumstances.
While Multi-District Litigation’s only apply to federal lawsuits in principle, it’s not impossible to transfer a state-court case to federal court, and then add it to an MDL.
In most Multi-District Litigations, a group of plaintiffs’ attorneys will be appointed to lead the litigation, devising arguments and directing the course of discovery. Evidence can be gathered, not on a case-by-case basis, but for the benefit of all. Defendants also gain from the process. Rather than filing motions to dismiss each case individually, a pharmaceutical corporation can argue for a global dismissal of the lawsuits.
Lawsuits filed after the MDL’s establishment can be consolidated as “tag-along actions.” In many consolidated litigations, the court will even allow for the creation of Short Form Complaints, making the filing process quicker than ever.
After the discovery process is complete, many MDL judges decide to select several representative cases, so-called “bellwethers,” which will go to trial first. Airing arguments and evidence before an actual jury is crucial to helping the respective parties understand where they stand. Of course, we’ve already seen three major jury verdicts handed down, all finding in favor of Plaintiffs, in the ongoing baby powder litigation. That’s an interesting wrinkle, but as of yet, there’s no way of knowing how these previous jury verdicts will affect the Judicial Panel on Multi-District Litigation’s decision-making process.
Depending on the results of bellwether trials, a Defendant may be faced with a difficult choice. Continue to fight in court or attempt to settle? In principle, lawsuits that aren’t resolved in the MDL court can be sent back, or “remanded,” to their original court for further litigation. In reality, most cases consolidated in this way settle before being sent back to their original court.
All of that, however, is far in the future – if it comes to pass at all. For now, the Illinois Plaintiff’s request for consolidation awaits a decision from the Judicial Panel on Multi-District Litigation.
