Is My Drywall Chinese? - HB Litigation Conferences

Unlike a class action, MDL is a procedural consolidation of independent actions
presenting some common factual issue. It is intended to streamline discovery and
pretrial proceedings in multiple cases presenting common issues of fact; however, these
independent cases are not tried together. After discovery and pretrial proceedings are
complete, the cases are remanded to the original district court for trial. Although the
procedural, discovery and other interlocutory rulings and judgments in one case are not
legally binding in other cases, as a practical matter such matters are not revisited absent
good cause. An MDL can render final judgments that may be dispositive of a case such
as granting a motion for summary judgment asserting a lack of general causation;
however, the MDL would have to require similar motions and notice simultaneous
hearings in all of the consolidated cases to make the ruling binding on all litigants.
MDL and class action are not mutually exclusive. An MDL can incorporate a certified
class action as one of the consolidated proceedings.
USE OF MDL: A DEFENSE PERSPECTIVE
MDL proceedings are a unique mix of procedures employed in class actions and large
consolidated cases that if used appropriately can avoid the problems associated with
both procedures.
General v. Specific Determinations One advantage of an MDL is that it provides a
mechanism for resolving common issues of law and fact in an efficient fashion while
preserving the litigants’ rights to an individual determination of case‐specific issues,
claims and defenses. From a defendant’s perspective, this can result in significant
defense cost savings. For example, a defendant can invest the time, effort and
resources into resolving an issue one time rather than fighting the same battle in
multiple venues with exponentially increased costs and possibly inconsistent results.
Although this makes an MDL a “high stakes” proceeding, the advantages of consistency
and efficiency generally outweigh the downside.
The preservation of a traditional trial for resolution of case‐specific issues is particularly
important. First, it allows an MDL to be used in cases in which a class action could not
be certified due to the predominance of individual issues. Second, it helps to overcome
defendants’ primary common aversion to class actions and consolidations of large
numbers of cases, that case‐specific defenses will be overwhelmed by the large number
of cases presented.
Discovery Another advantage of an MDL is the coordination of discovery in a single
venue which provides obvious cost savings by avoiding repetitive discovery.
Additionally, because expert witnesses will not be subjected to multiple depositions in
proceedings across the country, it is easier to find and retain the most competent
professionals willing to serve as litigation experts. A hidden advantage of expert
witnesses and corporate representatives not being subjected to multiple depositions is