On December 5, 2017, the U.S. Judicial Panel on Multidistrict Litigation (JPML) transferred to the Northern District of Ohio and, with the consent of that court, assigned to the Honorable Dan A. Polster for coordinated or consolidated pretrial proceedings, the lawsuits in regard to the national prescription opiate litigation.
On January 9, 2018, Judge Polster ordered lawyers into private talks with one goal in mind: Forget discovery, motions, and bellwether trials. Figure out a way to settle the opioid lawsuits as expeditiously as possible.
The multidistrict litigation (MDL) statute and the U.S. Supreme Court decision in Lexecon are crystal clear: “When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings….for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred….”
Congress and the U.S. Supreme Court clearly state that the MDL endgame is remand of the cases to their respective transferor courts.
In reality, the MDL endgame has very quietly become settlement (for pennies on the dollar) or dismissal with prejudice of all cases, not remand.
In sum, MDL is replacing justice with judicial efficiency.
Approximately 40% of the civil cases pending in the nation’s federal courts are consolidated in MDLs. This has resulted in a shift away from the rule of law to a system of arbitrary justice.
A single power-grabbing MDL judge is able to deny justice to hundreds of thousands of plaintiffs.
I believe that the meltdown of the U.S. federal judicial system will occur when the public realizes that: (a) judicial discretion in MDLs is replaced by judicial deception; (b) MDLs are grossly unfair, unreasonable, and inadequate for the plaintiffs; and (c) a relatively small group of self-interested “cooperative” attorneys are permitted to be grossly over-compensated for merely acting as dealmakers. The immediate cause of the 2008 meltdown of the financial services industry was the explosion in the unregulated market of CDOs on the frontend and CDSs on the backend. The immediate cause of the meltdown of the U.S. federal judicial system will be MDL’s unauthorized use of victims’ compensation funds on the frontend and settlement class actions on the backend. As Judge Patrick E. Higginbotham explains, “The disconnect between the power of the MDL judge and the power that the judge exercises rests on a statute that authorizes only the transfer of cases to that judge for purposes of pretrial proceeding with return to their filing homes, as the U.S. Supreme Court made clear in Lexecon. The rest of the operation finds its footing in some form of consent and assertions of implied and inherent authority sometimes on little more than empty air.”
Note: Before you read the following comments on this article, I advise you to visit:
BP Oil Spill: BP Pays PR Trolls to Threaten Online Critics
BP has been paying trolls to silence its online critics since 2010. Now, it appears that large pharmaceutical companies and other proponents of MDL Black Holes are doing the same.
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