From Class Actions to Multidistrict Consolidations: Aggregate Mass-Tort Litigation After Ortiz

Abstract

This Article examines the extent to which available empirical research supports the impressions of scholars that a shift has occurred from using class action procedures to using multidistrict-litigation procedures to manage and resolve tort litigation in the federal courts. This shift would transform the management of aggregate litigation from a system in which a judge presides over a case filed by a class representative in a district in which the parties have filed or removed a class action into one in which a judge selected by the Judicial Panel on Multidistrict Litigation presides over cases consolidated in a multidistrict litigation in which all (or most) parties are represented by counsel.Empirical findings presented and discussed in the Article suggest several shifts in practice appearing to lead to the current use of non-class settlements to resolve mass-tort litigation. The class action litigation landscape shifted in relation to changes in case law and governing rules of procedure. Though the number of personal injury-product liability class action lawsuits has shifted very little, the percentage in which a party files a motion to certify a class that a court grants for litigation purposes appears to have shrunk markedly. And, while the shift in class certification was taking place, the JPML began transferring products- liability litigations to single courts for consolidated management at a higher rate, and the number of products-liability consolidated cases expanded. As the class certification hurdles were raised, creative lawyers noticed that there are few, if any, practical barriers to aggregate non-class settlements. The end result is to leave the interests of plaintiffs in these mass-tort contexts solely in the hands of their attorneys, with no systematic judicial or other regulatory oversight. The ultimate question is whether that result is a fair, reasonable, and adequate treatment of those litigants.