Clifford Symposium: Opioid Cases and State MDLs

30 Pages Posted: 12 Oct 2020 Last revised: 25 Jan 2022

Date Written: May 28, 2020

Abstract

Professor Judith Resnik and others have shone a light on the importance of state courts and their lack of support. State courts handle many more cases than federal courts, and they often do so on shoestring budgets. Some have called this a “crisis.”

While there may be a crisis in state courts for many litigants and many cases, this diagnosis is not universally true. For one thing, some states have developed specialized business courts, seemingly to attract high-end litigation or to serve the needs of powerful interests in the state. In addition to this “wine track” for high-value cases, we have identified a pattern of states developing specialized bodies or procedures to handle mass litigation that may or not involve “business cases.” We have called these procedures to consolidate state-court litigation “state MDLs.”

Like federal multidistrict litigation (MDL), state MDLs coordinate litigation across courts within a court system. Sometimes state MDLs handle mass intrastate disputes — insurance lawsuits in Texas following a hurricane, wage-and-hour cases against employers in California, etc. But sometimes a state invokes its MDL procedures to coordinate state-court litigation in parallel with federal MDL and other state MDLs — including in the ongoing opioid litigation.

In this essay, we use the opioid litigation to consider the role of state MDLs in resolving national controversies proceeding in both state and federal courts. Of course, the opioid litigation is special for countless reasons, many of which are detailed elsewhere in this volume. But we think that the presence of overlapping federal and state MDLs is likely to be a persistent feature of mass tort litigation. Because of the rules of federal subject matter jurisdiction (and party and attorney preferences), a federal MDL is likely to be the center of gravity in these disputes. But state MDLs create opportunities for smaller yet meaningful counterweights, exerting their own (weaker) gravitation pull on the federal MDL and on each other. State MDLs derive their potency both from the fact they proceed in separate court systems and from the fact that represent the consolidation of multiple state lawsuits. This essay analyzes what it means to have these alternative power centers in state court — for better and for worse.

Keywords: opioid, MDL, multidistrict litigation, mass torts, civil procedure, opiate, judicial administration, institutional design, courts, attorney general, municipalities

Suggested Citation

Clopton, Zachary D. and Rave, D. Theodore, Clifford Symposium: Opioid Cases and State MDLs (May 28, 2020). 70 DePaul L. Rev. 245 (2021), Available at SSRN: https://ssrn.com/abstract=3680074

Zachary D. Clopton (Contact Author)

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

D. Theodore Rave

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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