MDL and the Allure of Sidestepping Litigation

18 Pages Posted: 6 May 2019 Last revised: 6 Nov 2019

Date Written: April 11, 2019

Abstract

This essay, written for a symposium on the 50th anniversary of the multidistrict litigation statute, tells the story of the opioids MDL as a lesson in the importance of providing a path to adjudication. The federal judge overseeing the National Prescription Opiate Litigation insisted early on that “people aren’t interested in depositions, and discovery, and trials” or “figuring out the answer to interesting legal questions.” He was interested, instead, in getting the parties to negotiate a settlement that would help solve the opioid addiction crisis. Bit by bit, the judge came to appreciate that he could not conjure up a settlement merely by urging it or by creating structures for negotiation. Unless the judge showed the parties a path to adjudication — including discovery, motions to dismiss, and trial — the parties not only lacked pressure to settle, they also lacked clarity about what they were supposed to be negotiating. The opioids MDL story illustrates the judicial urge to sidestep litigation and the importance of moving forward with the litigation process.

Keywords: MDL, multidistrict litigation, 1407, opioid, opiate, Polster, adjudication, settlement

JEL Classification: K41

Suggested Citation

Erichson, Howard M., MDL and the Allure of Sidestepping Litigation (April 11, 2019). 53 Georgia Law Review 1287 (2019), Available at SSRN: https://ssrn.com/abstract=3371209

Howard M. Erichson (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
646-312-8233 (Phone)

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