In 1968, the Multidistrict Litigation Act provided the framework for multidistrict litigation (MDL); where civil actions involve “one or more common questions of fact . . . pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.” 28 U.S.C. § 1407(a).
More than forty years later, MDLs make up half of all pending civil cases pending in federal courts. Of those cases, more than 90% are product liability claims. Despite these staggering numbers, the Federal Rules of Civil Procedure remain silent about these cases. That may change. In August 2023, the Judicial Conference Advisory Committee on Civil Rules published the first version of proposed Rule 16.1. The final version of Rule 16.1, if approved by the Supreme Court and Congress, will likely be implemented on December 1, 2025.
What are the new Rule 16.1 requirements?
Proposed Rule 16.1 offers guidance to courts receiving transferred actions (“transferee courts”) for the initial management of MDL proceedings; it is essentially the counterpart of Rule 16, tailored to the specific needs of managing multiple cases simultaneously. But the Rule is just that – guidance. The Rule uses permissive language: “may” and “should,” rather than “must” and “shall.” This choice is intentional. The Committee determined because not all MDLs are created equal, this permissive language is required for a transferee court to “maintain flexibility in managing MDL proceedings.” In other words, Rule 16.1 codifies a transferee court’s discretion to manage an MDL while providing guidance for such discretion.
The Rule offers multiple suggestions for early management, such as scheduling an initial management conference, requiring the parties submit an early report about the matters designated in Rule 16.1(b)(2)-(3), and appointing leadership counsel. The Rule also provides transferee courts opportunities to streamline the gathering of necessary information to distinguish baseless claims from valid ones. However, it continues to leave the ultimate management of an MDL to the discretion of the transferee court. It remains to be seen if the permissive language of Rule 16.1 will actually streamline pretrial proceedings as various jurisdictions and even judges often vary widely in how they manage MDLs.
How does Rule 16.1 affect pending product liability MDLs?
Defendants in product liability MDLs bear unique risks, especially related to meritless claims. In theory the consolidation of similar claims should facilitate earlier resolution of claims. In reality, the size and scope of MDLs often results in a small number of valid claims being consolidated with many meritless claims brought on behalf of plaintiffs who ultimately cannot demonstrate they purchased or used the product at issue, or that they were injured by it. On the other hand, Rule 16.1’s permissive language may provide defense counsel the support they need to gain information about plaintiffs’ claims early on in pretrial management, thus providing avenues to weed out meritless claims.
The Proposed Rule offers several additional sub-parts that are of particular interest for defendants in product liability MDLs, such as Rule 16.1(b)(3)(A)’s opportunity for consolidated pleadings, and Rule 16.1(b)(3)(C)’s opportunity for discovery into plaintiff’s claims.
Rule 16.1(b)(3)(A) Consolidated Pleadings: Defendants should request consolidated answers, which significantly reduces the cost of responding to hundreds of claims made by individual plaintiffs. Defense counsel should also evaluate each case for the opportunity to dispose of multiple cases at once, through consolidated pleadings such as Rule 12 motions to dismiss or Rule 56 motions for summary judgment. Such pleadings could potentially weed out baseless causes of action quickly.
Rule 16.1(b)(3)(C) Discovery: Defendants should take advantage of the opportunity to conduct early discovery into plaintiffs’ claims. First, to weed out meritless claims, defendants should request the transferee court use a “fact sheet” or a “census” method to take a survey of the claims and defense presented. These “fact sheets” can be used to determine which plaintiffs can actually demonstrate they purchased or used the product, or that they were injured by it—weeding out baseless claims. Second, the opportunity for early discovery could also permit early disclosure of expert opinions or theories of causation, which may facilitate early resolution of groups or classes of cases.
Conclusion Whether Rule 16.1’s permissive language succeeds in streamlining MDLs remains to be seen. Regardless, its language offers defendants in product liability MDLs support to seek consolidated pleadings and early discovery, which can support early and economical resolution of matters. The rule highlights the need MDL counsel that is well versed in federal court litigation and the unique intricacies of jurisdictions where these cases take place.
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