When people think of cases involving thousands of plaintiffs, they often just assume it is a class action. This is not always the case, and there is increasing preference by the courts away from class actions and towards multi-district litigation (MDL). They are very different. Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure, and Article 591 of the Louisiana Code of Civil Procedure. The Louisiana Code tracks the Federal Rules, and class actions require that the class is: (1) so large that all cases cannot be joined; (2) common questions of law or fact to the entire class; (3) the claims of the plaintiffs or the defenses are typical of the claims of the class; and (4) representative parties are adequate to protect the interests of the class as a whole (and Louisiana has a fifth element that the class is ascertainable, meaning that the members of the class can be identified). The class action rules require that the remedies be commonly applied, which makes a class action perfect for cases where there is an identical statutory damage allowed per claim, or where there the result would apply to the class in the same way, such as a recall of a defective product, or a company stopping a bad practice.
However, many mass torts involve injuries or damages to large numbers of people, where each person is affected differently and to a different extent. Class actions are not designed to deal with this situation, and a second type of mass tort has emerged – the MDL. Courts around the country, including the United States Supreme Court, has made class action adjudication more difficult and more limited in a series of recent decisions, and the MDL has gained increased popularity. The MDL is an action where there are similar cases brought against a defendant (or group of defendant), which relate to similar issues of fact or law, and which there is a danger of inconsistent rulings from a number of courts on the same issue. These cases, on motion, will be put in front of the Judicial Panel on Multi-district Litigation (JPML), which will consolidate all of the cases around the country and assign it to one judge in one court for handling. The appointed judge has control over the litigation through the entire process up to the individual trials. Often times, however, the MDL judge will also hold a number of representative trials as well. This consolidation allows for a stream-lined discovery process and the handling and filing of potentially many thousands of cases.
Many residents of Louisiana and the Gulf South have had claims filed into the MDL resulting from the BP Oil Spill. Other MDLs relate to medical devices or pharmaceutical products which have caused injuries. Still other MDLs stem from defective products which have damages people’s homes, such as the Chinese Drywall litigation.
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