Multidistrict Litigation: Dominating the Federal Docket
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BUSINESS OF LAW
Multidistrict Litigation: Dominating
the Federal Docket
By Daniel S. Wittenberg, Litigation News Associate Editor
For the first time in its 50-year history, multidistrict
litigation (MDL) makes up more than 50 percent
of the federal civil caseload. According to a recent
assessment of statistical information released by the
U.S. Judicial Panel on Multidistrict Litigation (JPML)
by the Lawyers for Civil Justice (LCJ), MDLs accounted for
51.9 percent of all pending federal civil cases at the end of
2018. As reported, this is an increase of four percent from
2017. When MDLs were created in 1968, nobody could
have predicted that half a century later they would domi-
nate our federal civil docket, says LCJ Executive Director
Andrea B. Looney in a press release.
MDL by the Numbers
Since the creation of the JPML in 1968, 673,104 civil
actions have been centralized for pretrial proceedings. The
percentage of civil cases in MDLs has more than tripled
over the past 16 years. Of the 301,766 civil cases pending
in the federal court system at the close of 2018, 156,511
were pending in 248 MDLs. According to the JPML, the
top three MDL case types are products liability, antitrust,
and sales practices. At the end of 2018, the JPML noted that
these three categories made up 69.1 percent of the pending
MDLs, with products liability constituting 32.9 percent,
antitrust 24.1 percent, and sales practices 12.1 percent.
As a function of all cases in MDLs, 91 percent are prod-
ucts liability cases. Additionally, at the end of 2018,
MDLs with 1,000 or more cases represented 46 percent of
the pending federal civil cases. Moreover, there is signifi-
cant concentration within MDLs, with just 12 percent
of the MDLs containing nearly 90 percent of all pending
MDL cases.
MDL at 50
The MDL statute was enacted in April 1968 to authorize
coordinated pretrial proceedings before a single judge,
[w]hen civil actions involving one or more common ques-
tions of fact are pending in different districts, when trans-
fers for such proceedings will be for the convenience of
parties and witnesses, and when transfer will promote the
just and efficient conduct of such actions. The statute was
based on the federal judiciary's experience in supervising
nationwide discovery proceedings in electrical equipment
cases pouring into the federal courts in the early 1960s.
Per the statute, the JPML consists of seven judges from
district courts or courts of appeals. The JPML is chosen by
the chief justice of the U.S. Supreme Court, and the first-ever
panel was selected by Chief Justice Earl Warren. Ironically,
the first MDL motion filed after President Lyndon Johnson
signed the bill into law was denied. Following hearings in
August 1968, however, the first MDL, In re Eisler Patents,
was established.
C
26 I ABA SECTION OF LITIGATION
Published in Litigation NewsVolume 45, Number 1, Fall 2019. © 2019 by the American Bar Association. Reproduced with permission. AII rights reserved. This information or any portion thereof may not be copied or disseminated in any form or
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Multidistrict Litigation: Dominating the Federal Docket
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