Tanya Pierce, ‘It’s Not Over ‘Til It’s Over: Mandating Federal Pretrial Jurisdiction and Oversight in Mass Torts’

Nearly twenty years ago, speaking of the difficulties inherent in managing mass tort cases, Chief Justice William Rehnquist predicted that without coordinated state and federal mechanisms, lawyers would “seek to pursue duplicative and exhaustive litigation”. And some courts, “operating under a parochial view of the situation,” would allow them to do so. He warned that the result would be “expense, delay, resulting crowding of dockets, divergent decisions on identical factual questions, and sometimes the insolvency of the defendants who are being sued”. Despite this and similar warnings, expensive and exhaustive litigation is exactly what has happened in many cases.

Because of concurrent jurisdiction in mass tort litigation, lawyers often file tens of thousands of separate but related lawsuits in federal and state courts all over the country. No existing procedural mechanism requires co-ordination of all of these related cases. Therefore, this type of litigation threatens inconsistent awards or even the bankruptcy of defendants such that no resources would be available to pay injured plaintiffs who file suit later but who may be just as entitled to compensation. In addition, even when courts and parties engage in massive, voluntary coordination efforts and are able to negotiate settlements, holdover parallel litigation may threaten those efforts. If those threats are not effectively controlled, courts may become unable to manage future litigation and facilitate other settlements.

Recognizing that effective docket management by multidistrict litigation courts is crucial to the ability to resolve complex mass torts where class action treatment is not available, this Article argues that it is more important than ever to facilitate pretrial consolidation of interstate litigation. The recent litigation surrounding the drug Vioxx highlights the ways in which duplicative, parallel state court litigation can threaten the ability of federal courts to effectively manage mass tort litigation, even when massive voluntary coordination efforts are involved. This Article proposes the adoption of amendments to the federal Multidistrict Litigation Statute to allow pretrial consolidation of related cases that are filed in state courts as well as in federal courts. This change could be accomplished by incorporating a minimal diversity jurisdiction requirement into the statute. Additionally, this Article recommends that the Multidistrict Litigation Statute be changed to require courts to provide oversight during the settlement process and over the settlements themselves, similar to the judicial oversight of settlements in federal class actions.

Part II of this Article explores recent developments in mass tort litigation and the resulting enactment of the Multidistrict Litigation Statute. Part III explains how the Supreme Court’s decisions limiting the availability of federal class certifications has restrained recent attempts to combat duplicative litigation in mass tort cases and resulted in increased reliance on the Multidistrict Litigation Statute as the preferred aggregation device. In light of these developments, Part IV reconsiders prior calls for changes to allow courts to more effectively manage duplicative litigation. Parts V and VI use the historical underpinnings of the Anti-Injunction Act and criticisms of interpretations of the Act to analyze the trend of recognizing certain multidistrict litigation contexts as permitting injunctions against parallel state action. Part VII examines Supreme Court precedent that consistently favors strict statutory interpretation and federalism over innovative statutory interpretations aimed at increasing judicial efficiency. It concludes that the Supreme Court would not uphold the current trend of allowing injunctions against parallel state actions in multidistrict litigation cases. Finally, Part VIII proposes solutions aimed at increasing efficiency, predictability, and fairness in the management and resolution of mass tort litigation.

Pierce, Tanya J, It’s Not Over ‘Til It’s Over: Mandating Federal Pretrial Jurisdiction and Oversight in Mass Torts (June 6, 2014). 79 Missouri Law Review 27 (2014).

First posted 2014-07-22 05:35:49

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