A Hub-and-Spoke Model of Multidistrict Litigation

23 Pages Posted: 22 Jul 2021

See all articles by D. Theodore Rave

D. Theodore Rave

University of Texas at Austin - School of Law

Francis E. McGovern

Duke University School of Law

Date Written: July 13, 2021

Abstract

Consolidating mass tort cases in federal multidistrict litigation (MDL) has been a successful strategy for efficiently managing, facilitating the maturation of, and resolving nationwide disputes. This has been particularly true for cases involving single-event mass disasters or defective products sold by a single defendant, even when thousands of plaintiffs are involved. But in "mega mass torts"--those involving multiple defendants and multiple products and activities over an extended period of time (e.g., asbestos, silicone gel breast implants, opioids)--comprehensive resolution in an MDL has proven elusive. In these mega mass torts, the MDL judge can become a bottleneck, as there are only so many motions, discovery disputes, and bellwether trials a single judge can decide. But while these types of mega mass torts may be too varied for a single simultaneous trial or global settlement, eschewing aggregation would result in massive losses of efficiency and consistency.

Here we propose a "hub-and-spoke" model of MDL case management for these sorts of mega mass torts that takes full advantage of the nationwide scope of the federal judiciary to relieve pressure at the bottleneck. The idea is to initially consolidate all related cases in a single MDL (the hub) for common discovery and pretrial management. In the course of managing the hub MDL, the hub MDL judge will identify sensible groupings of parties and claims to recommend to the Judicial Panel on Multidistrict Litigation for strategic disaggregation as test cases. Those test cases will then be remanded to other federal judges (the spokes) to allow the litigation to move forward through further pretrial development, bellwether trials, and potential piecemeal settlements. The spoke cases can proceed in parallel with the cases still in the hub MDL to speed the process of maturation, much in the same way that a computer can handle complex tasks faster through parallel processing than through serial processing. The hub MDL judge may also retain jurisdiction over a common issue or party to provide a ready forum for a potential global resolution should the information generated in the spokes make one possible.

In this article, we discuss the problem of bottlenecks in mega mass tort litigation. We then describe the hub-and-spoke model, the advantages it offers over other approaches to mega mass tort litigation, and the ways in which it can increase the chances of finality in mega mass tort cases through a variety of settlement structures. Finally, we analyze an example of the hub-and-spoke model in action in the ongoing National Prescription Opiates MDL.

Keywords: multidistrict litigation, complex litigation, mass torts, civil procedure, opioids, hub-and-spoke, MDL

JEL Classification: k13, k40, k41

Suggested Citation

Rave, D. Theodore and McGovern, Francis, A Hub-and-Spoke Model of Multidistrict Litigation (July 13, 2021). Law and Contemporary Problems, Vol. 84, No. 2, 2021, U of Texas Law, Public Law Research Paper , Available at SSRN: https://ssrn.com/abstract=3890203

D. Theodore Rave (Contact Author)

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

727 East Dean Keeton Street
Austin, TX 78705
United States

Francis McGovern

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
(919) 613-7095 (Phone)
(919) 613-7231 (Fax)

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