An Emerging Structure of ADR in Mass Torts and MDLs
The official statistics provided by the Judicial Panel on Multidistrict Litigation in recent years count Products Liability as nearly one quarter of all pending multidistrict litigations (MDLs), making it the largest category among all classifications.
Many of these Product Liability MDLs, especially pharmaceutical and medical device mass torts, continue to dominate headlines in mainstream and legal media. These mega cases dominate and potentially drain the resources of the courts, counsel and parties to the litigation. The magnitude of these matters, combined with the statistical likelihood of eventual settlement in nearly all of them requires focus on trends that facilitate resolution.
ADR has a longstanding role in resolving some of the largest and most high-profile matters. As with any evolving industry, ADR models were developed to streamline processes for the efficient resolution of disputes. This is certainly true within the context of mass torts, where a cooperative, working model has emerged because all stakeholders buy into its effectiveness.
With increasing frequency, defendants are creating settlement teams separate from trial teams, sometimes very early in the litigation. Plaintiffs are exercising the same strategy with the formation of Plaintiffs’ Steering Committees. Both teams consist of individuals with earned reputations as effective negotiators. Simply put, these teams work with the judges, magistrate judges, mediators, and special masters to form a cohesive settlement process.
A parallel evolution is also occurring on the special master side. Historically MDLs often utilized a discovery special master, but the emerging trend is the additional designation of a “settlement special master.” Whether appointed by the court or selected through agreement of counsel, this role is becoming the analog of the plaintiff and defense settlement teams. For example, in the Gadolinium Contrast Dyes Product Liability Litigation MDL, the Hon. Dan Polster, Northern District of Ohio, appointed Cathy Yanni as Settlement Special Master. According to Yanni, “[w]orking as the Settlement Special Master, I was able to negotiate settlements with the assistance of the court and had the authority to work independently with the parties and counsel to settle groups of cases as well as individual cases.”
Given the scope and size of mass tort actions and the incredible burden on all involved, the utilization of improved ADR methodologies—including the use of settlement special masters— is a practical and valuable consideration for all practitioners.
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