ZANTAC: A Dangerous Drug
June 30, 2020
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Multidistrict Litigation 101: The What, How And Why Of Pursuing Justice For Serious Injury

If it was too dangerous for air traffic controllers, it was too dangerous for you.

The founder of KR Law, Kristian Rasmussen, helped prove that the maker of Chantix, medication used to help people quit smoking cigarettes, rushed the drug to market. This allowed serious side effects to occur–ranging all the way up to suicidality—for some users severely impacting their lives and their families. Rasmussen was able to recover a substantial amount of money for plaintiffs in the massive litigation that resulted.

The mass tort vehicle used to litigate and achieve results in this important case is known as multidistrict litigation, or MDL for short. An MDL is a powerful tool that enables hundreds and perhaps thousands of people and their attorneys to push ahead in an injury-related matter with maximal impact.

During an MDL, an individual case is treated exactly as it is: as an individual case based on its own merits. That makes it much different than a class action. The following points discuss five specific elements of MDLs:

An MDL consolidates numerous individual cases.

Multidistrict Litigation (“MDL”) consolidates lawsuits in one jurisdiction allowing one judge to preside over all pretrial matters.  This means a plaintiff who lives in, say, Wisconsin, may find her case transferred to the Southern  District of Florida or the Eastern District of Texas.

An MDL carries a number of benefits. It reduces litigation costs. Discovery conducted on the individual cases is more likely to be consistent, which supports a global settlement for all plaintiffs. The cases themselves are litigated separately and not lumped together.

A steering committee of involved attorneys is often formed to lead and oversee the MDL. This committee manages each step, most crucially the pre-trial processes of discovery, complaint-filing and recruiting and retaining expert witnesses.

MDLs differ significantly from class action lawsuits.

A class action is the much more well-known avenue for allowing multiple people to seek compensation for a common cause of action. Unlike MDLs, class actions are single cases, in which “representative parties” hold themselves out as named plaintiffs acting on behalf of the class. To form a class, federal procedural law demands the attorney show the practicality of forming the class is warranted; that common factual and legal questions exist; that the claims of all plaintiffs are typical; and that the “representative parties” will represent the class fairly. (see Federal Rule of Civil Procedure 23(a)). Class action suits often are filed at the behest of an individual client. It is then on the filing attorney to argue for the class formation—and find and attract other would-be plaintiffs to form the real class.

In contrast, MDLs develop more organically.  Attorneys who discover that specific serious injuries are being claimed across regions can work together foster, grow and maintain these cases. Pursuing an MDL rather than a class action allows you to maintain flexibility in the compensation you may receive, This compensation is usually based on the merits of the case, including the severity of the injury, and on its own strengths and weaknesses. This independence is important in injury cases, as no two injuries suffered by a plaintiff are exactly like. Class actions, on the other hand are arguably more appropriate for addressing financial injuries such as securities fraud, illegal debt collection practices and others.

An MDL is created and centralized by a specific judicial body that carefully considers all variables.

MDLs are formed via decisions made by the U.S. Judicial Panel of Multidistrict Litigation (JPML). The JPML is a special body within the United States federal court system that manages multidistrict litigation. The JPML, which operates in Washington, D.C., convenes six times a year to hear arguments from both sides on whether the MDL is necessary, and how it should be governed if so. It is the JPML that selects the district court to serve as “home court,” and the presiding judge. Either plaintiffs or defendants can seek to centralize actions into an MDL.

Steering committees for specific MDLs, and the processes that govern the transfer of existing cases into the MDL jurisdiction, are also formed with the guidance of the JPML. Read more about the rules that govern the JPML here.

A threshold for joining an MDL as an aggrieved plaintiff exists.

Seeking compensation for serious injuries through an MDL is not as simple as consuming an advertisement, calling an attorney, swinging by the office and signing a piece of paper. A potential litigant must be vetted through an intensive discovery process before a complaint can be filed on his or her behalf.

This entails the completion of a Plaintiff Fact Sheet (PFS). The PFS collects demographic information, a history of the injury and its consequences and other pertinent information. This also entails satisfying what are known as Proof of Use and Proof of Injury. These can often be satisfied with the provision of medical records, receipts, logs and other specific evidence.

Once a determination is made that a prospective plaintiff can join the MDL, the complaint is then filed. MDL filings can often be streamlined through the use of a specific “checkbox”-friendly form, cutting down on time and cost.

An MDL often receives a test drive through the use of “bellwether” trials, lending them some predictability.

The MDL court is charged with overseeing pre-trial processes. Sometimes, it may be uncertain what settlement range the cases will encompass. Other times, it is unclear how issues such as causation and the veracity of warnings of potential defects will affect the evaluation of the claims. As a result, the court will often allow a handful of individual cases related to the MDL to proceed to trial as a means of gauging jury outcomes and assigned damages.

Hence, these trials are referred to as “bellwether” trials. They are useful in setting the expectations of the attorneys’ clients, and in adjusting strategy or discovery requirements.

Like other types of civil litigation, mass torts governed through MDLs are often managed on a contingency-fee basis, meaning there is no cost to you upfront.

This, along with the factors outlined above, have made the MDL an increasingly attractive litigation option. This is especially true as spending on direct product advertising has exploded—and the potential for misinformation or concealed information has exploded, too.

It takes persistence and patience to manage an MDL (the process can take months or years to unfold). However, as with those whose lives were ruined by Chantix, the rightful justice it can achieve may just be worth the effort.

Kristian Rasmussen
Kristian Rasmussen
Kristian Rasmussen has been appointed by United States District Judge Inga Johnson as a lead attorney serving on the Plaintiffs Steering Committee for MDL No. 2092, In Re Chantix (varenicline) Products Liability Litigation. Mr. Rasmussen’s prior litigation experience includes being designated as Co-Lead Trial Counsel for MDL No. 1632, In re High Sulfur Content Gasoline Products Liability Litigation and being appointed by United States District Judge Charles Bryer to serve as a lead attorney on the Plaintiffs Steering Committee as co-chair of the discovery committee for MDL No. 1699, In Re Bextra and Celebrex Unfair Sales Practices and Product Liability Litigation. Additionally, before entering into private practice, Mr. Rasmussen prosecuted cases as a Special Assistant United States Attorney in the Northern District of Florida and served the United States Navy as an officer in the Judge Advocate General’s Corps. Mr. Rasmussen has been awarded multiple verdicts and settlements in excess of One Million Dollars.

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