Proposed Rule On Mass Torts Doesn’t Please Defense Attorneys

After prolonged debate, the U.S. Judiciary Conference’s Advisory Committee on Civil Rules issued a proposed rule last March that would apply to federal multi-district litigations affecting consolidated lawsuits against companies. The suits number in the thousands, and as reported in Reuters, the defense bar and major corporations say that it fails to address the fundamental problem; weeding out “meritless” lawsuits.

Their critique boils down to the assertion that the proposed rule contains no actual requirements. It is merely advisory, and judges are free to ignore it. They want a rule that prevents the plaintiff’s bar from filing claims in multi-district litigations without factual support.

Defense lawyers offer the example of pharmaceutical cases in which a significant number of plaintiffs have no evidence for their claims such as records showing they used the drug at issue. Nevertheless, they bloat mass torts because they are not culled out until late in the process. They say the rule should establish a process that requires each plaintiff to demonstrate factual support early in a case.

“It will be prophylactic. They’re not going to file these cases,” said Christopher Guth, a senior assistant general counsel at Bayer, which is mired in litigation over the weed killer Roundup that came along as baggage when it merged with Monsanto. As of September 2023, agreement had been reached in nearly 100,000 Roundup lawsuits, at a cost of approximately $11 billion. There are still about 30,000 active Roundup lawsuits, most in state court.

U.S. District Judge R. David Proctor, who chairs the subcommittee that drafted the proposed rule, says that assessing cases one by one for factual support would be unnecessary if the defense makes a motion to dismiss all cases at once.