MDL Immunity: Lessons from the National Prescription Opiate Litigation

77 Pages Posted: 5 Sep 2019 Last revised: 8 Nov 2019

See all articles by Roger Michalski

Roger Michalski

University of Oklahoma - College of Law

Date Written: November 3, 2019

Abstract

Federal multi-district litigation (“MDL”) suffers from a massive blind spot that has largely escaped notice: it only selects cases based on “convenience,” “efficiency,” and the preservation of judicial resources. The statute does not take into account broader societal and governmental interests that can trump litigation efficiency arguments. One way to fix this blind spot is through the new concept of MDL immunity (a procedural rather than liability immunity). This doctrinal innovation would exempt cases by and against government entities from generalized MDL treatment.

I make the doctrinal argument for MDL immunity informed by original data collected from hundreds of cases in the federal opiate epidemic litigation, cross-referenced with opioid abuse data from the Center for Disease Control and American Community Survey data from the Census Bureau.

The doctrinal and empirical contributions of this Article will likely prove useful in other domains where local governments also struggle to articulate and fund responses to national crisis, including litigation surrounding data privacy, e-cigarettes, firearms, predatory lending, obesity, environmental contamination, global warming, and sanctuary cities.

Keywords: Opiate Litigation, Multi-District Litigation, Opioids, Opioid Crisis

Suggested Citation

Michalski, Roger, MDL Immunity: Lessons from the National Prescription Opiate Litigation (November 3, 2019). American University Law Review, Vol. 69, No. 1, 2019, Available at SSRN: https://ssrn.com/abstract=3444507 or http://dx.doi.org/10.2139/ssrn.3444507

Roger Michalski (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

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