Sherman on Aggregate Litigation

This article reviews the origins and development of multidistrictlitigation before proceeding to examine its ability to take the placeof class actions for the resolution of complex litigation. After notingthat class actions are increasingly unavailable, particularly inpharmaceutical products liability cases, the article explores themanagement of the In re Vioxx Products Liability Litigation MDL. Thearticle concludes that the MDL model can allow for the efficientresolution of complex litigation where a class action is not available,but creative management by the MDL transferee court is crucial.Highlighted are the use bellwether trials and the global settlementacross jurisdictional lines, crafted by counsel in both federal andstate courts and blessed and overseen in its execution by the MDLcourt. Professional ethics issues regarding requiring opting-inplaintiffs’ attorneys to urge their clients to participate in theglobal settlement and, if not, to withdraw, are discussed. The growinguse of multidistrict transfers of discreet litigation to a single courtin various states is examined. Finally, the article calls for Congressto enhance the powers of MDL courts and to learn from the experience ofthe states and district courts that have experimented, often on an adhoc basis, with the MDL model.