Corporate Lawyers Endorse Change to MDL Law; Brent Wisner, Ari Kresch Comment

By Christina Grube

(MASS TORT NEWS) Thirty-one corporate defense lawyers wrote to the U.S. Courts MDL Subcommittee on Rules of Practice and Procedure in support of proposed changes in MDL law governing “unexamined claims” by plaintiffs earlier in litigation. The undersigned attorneys represent defendants Bayer, Exxon, General Motors, Microsoft, Johnson & Johnson, 3M, and Pfizer, to name a few.

In late 2022, The MDL Subcommittee of The Court’s committee on Rules of Practice and Procedures released a draft of potential changes to MDL Rule 16.1 in an attempt to streamline litigation and weed out plaintiff claims without standing. 

“A Rule 16.1 should help judges and parties avoid the well-known problems that unexamined claims cause in MDL proceedings by raising awareness of the problem and prompting judges to require a demonstration of basic due diligence into plaintiffs’ claims, such as evidence of exposure to the alleged cause and a resulting injury, early in the case,” read the March 1 letter.

While the letter (included below) supports a change in Rule 16.1, defense lawyers did not support the rule’s introduction into Federal Rules Civil Procedure (FRCP) language.

“The rule would cause more harm than good if it were to introduce into the FRCP language,” the letter argued, claiming the rule “is inconsistent with other FRCP provisions…promotes controversial actions…presumes parties will waive significant rights, including constitutional due process rights…contradicts the MDL statute.”

Writers reaffirmed their strong support for the MDL code revision when concluding by writing, “We support the MDL Subcommittee’s effort to draft a new Rule 16.1 that would give courts and counsel the tools they need to manage MDLs effectively in the early stages of litigation and facilitate timely resolution of cases.”

“However,” they continued, “we strongly oppose any provisions that could do more harm than good by enshrining into the FRCP concepts that would undermine the foundations of existing FRCP provisions, the MDL statute, or other law.”

Plaintiff lawyers view corporate support for the proposed changes as a way to undercut plaintiff claims and save corporations million in plaintiff settlements.

Wisner Baum Managing Partner Brent Wisner described the proposed changes as “nothing more than a transparent attempt to inject a corporate agenda into a Rule of Federal Procedure.”

“MDLs are not a clearinghouse,” Wisner told MTN. “Corporate Counsel’s effort to fashion rules to ‘weed out’ unmeritorious cases misapprehends the purpose of the judiciary….Each plaintiff deserves due process.”

1-800-LAW-FIRM Founder and CEO Ari Kresch echoed Wisner’s concerns for plaintiffs, noting that the number of unsubstantiated and dismissed plaintiff cases make up a minute portion of MDL plaintiffs. “What does [an] attorney stand to gain by deliberately taking a meritless case?” asked Kresch. “If there are lawyers who recklessly file cases, they should be dealt with on an individual basis. We should not punish every plaintiff and their lawyers for the sins of a few.”

Kresch told MTN that while the law should be encouraging unsubstantiated plaintiff filings, “It is nonsensical to think that the small number of cases that fit into this category are done deliberately.” Kresch further noted the financial motive in changes to Rule 16.1 for corporations. “The only expense that will be reduced is defense costs, as they are likely to abuse a rule that requires the plaintiff to essentially prove their case even before discovery,” Kresch said.