MDL Immunity: Lessons from the National Prescription Opiate Litigation

69 Am. U. L. Rev. 175 (2019).

* Associate Professor of Law, University of Oklahoma. I would like to thank the National Center for Health Statistics, the Center for Disease Control, vital statistics jurisdictions, as well as their staff for granting me access to the vital statistics used in this Article and for their helpfulness and professionalism. For their helpful comments, I thank Dave Marcus, Deborah Hensler, Steven Gensler, Melissa Mortazavi, and the participants of the Civil Procedure Workshop.

Federal multi-district litigation (MDL) suffers from a massive blind spot that has escaped notice: it only selects cases based on “convenience,” “efficiency,” and the preservation of judicial resources. The statute does not take into account broader societal and governmental interests that can trump litigation efficiency arguments. One way to fix this blind spot is through the new concept of MDL immunity (a procedural rather than liability immunity). This doctrinal innovation would exempt cases by and against government entities from generalized MDL treatment.

I make the doctrinal argument for MDL immunity informed by original data collected from hundreds of cases in the federal opiate epidemic litigation, cross-referenced with opioid abuse data from the Center for Disease Control and American Community Survey data from the Census Bureau.

The doctrinal and empirical contributions of this Article will likely prove useful in other domains where local governments also struggle to articulate and fund responses to national crises, including litigation surrounding data privacy, e-cigarettes, firearms, predatory lending, obesity, environmental contamination, global warming, and sanctuary cities.

Introduction

The opioid epidemic claimed over 40,000 lives last year.¹ Over 2 million individuals suffer from opioid induced impairment and dependence.² Countless other lives are affected and many families and communities suffer the effects of rampant opioid abuse.³ In the past, many courts conceptualized opioid abuse as the individuals’ responsibility.⁴ More recently, a broad coalition of legislators, attorneys, academics, commentators, and doctors have argued that drug manufacturers might share a significant portion of the blame for the opioid epidemic because they intentionally or recklessly encouraged over-prescriptions, enshrouded the true risks of addiction, and targeted vulnerable populations.⁵ In hundreds of lawsuits filed across the nation, numerous cities, counties, Native-American tribes, states, labor-unions, hospitals, individuals, and insurance companies are currently invoking these novel legal arguments against opioid manufacturers and distributors.⁶ All of the federal lawsuits concerning the opioid epidemic have been transferred away from their various courts of origin for coordinated pretrial proceedings.⁷ Currently, over 1900 cases with over 2400 plaintiffs are in front of a single judge in the Northern District of Ohio.⁸ If past experience serves, virtually none of these cases will ever return to where the plaintiffs originally filed these lawsuits.⁹

This stunning feat of procedural prowess is possible under 28 USC § 1407 (“1407” or “MDL statute” or “federal multidistrict litigation”). Once a rarely used procedural oddity, cases transferred under the multidistrict litigation statute now account for roughly a third of the federal docket.¹⁰ Use of section 1407 is controversial and often fiercely contested because it radically re-balances the litigation opportunities and vulnerabilities of plaintiffs and defendants.¹¹ Instead of defending in district courts all over the country, a defendant only has to defend in one proceeding. Instead of facing many plaintiffs with many strategies and approaches to discovery and motion practice, the defendant faces a steering committee of plaintiff attorneys selected by the judge who, often, is focused on protecting judicial resources and encourages broad settlements.¹²

Multidistrict litigation faces numerous critics,¹³ but the opioid epidemic litigation highlights a problem that has largely escaped notice: 1407 only selects cases where “common questions of fact” are present and where transfer serves the vague goals of furthering “the convenience of parties and witnesses” and “promote[s] the just and efficient conduct” of transferred cases.¹⁴ The MDL statute does not test for broader interests. Such broader interests might be at play in many instances. Typically, the belief is that other interests are subordinate to the larger goal of efficient adjudication and the parsimonious use of judicial resources.

However, in the context of the opioid epidemic (and litigation like it) there are special and strong additional considerations at play. First, the opioid epidemic is of greater national concern than many other MDL cases.¹⁵ Second, the plaintiffs in this MDL (mostly counties and cities) are representing sections of the public at large and are trying to protect their government police powers.¹⁶ Third, the plaintiffs here are unusually heterogeneous, ranging in population, wealth, litigation resources and experience, governing powers and responsibilities, and varying exposure to the opioid epidemic (early/late, low/high, legally prescribed/illegally obtained). This extreme variation sets the opioid epidemic plaintiffs apart from those in many other MDL cases where similarly situated individual consumers allege more comparable harm.¹⁷ Fourth, many plaintiffs here stress the importance of public disclosure as a litigation goal to educate the public they represent.¹⁸ Fifth, the legal theories invoked by the current plaintiffs in the opioid cases are novel and complex¹⁹ and implicate a difficult debate about the nature and causes of addiction,²⁰ the role of intervening causality,²¹ preemption,²² the interplay of criminal and civil sanctions,²³ measuring harm,²⁴ local powers in the midst of a paralyzed national crisis, and the intractable costs of a drugged society.²⁵ Such new and complex legal theories can best be tested and developed over time if diverse advocates push for them, diverse defendants point out their flaws, and diverse audiences evaluate them.²⁶ Litigating such issues in a single forum in front of a single judge will likely underdevelop the factual record, underdevelop the legal theories, and underdevelop democratic legitimacy.

All of this suggests a heightened value for dispersed local adjudication, in a timely manner, on the merits, targeted at the specific and individualized harm suffered in that place, controlled by that plaintiff (e.g., targeting discovery to their litigation goals), and which provides resident witnesses a chance to participate in front of a local judge and jury that are mindful of local conditions and sensibilities. This is the exact opposite of what the MDL process typically promises and has actually delivered in this case thus far.

We can gain some sense of what the road not taken might look like thanks to the accident of non-removability.²⁷ While most opioid cases were either filed in federal court or removed to federal court and thus brought within the broad transfer powers of the Judicial Panel on Multidistrict Litigation (JPML or the “Panel”), a few cases remained in state courts and thus cannot be transferred to the federal MDL.²⁸ For example, one opioid case was filed in Oklahoma state court and became non-removable, seemingly because of a mistake by counsel for the defendants.²⁹ The case has remained in state court despite subsequent efforts to remove to federal court and invoke 1407. The Oklahoma case was filed around the same time as hundreds of others now in the federal opioid MDL. While the federal cases appear years away from deep and individualized discovery and an on-the-merits adjudication, the case in Oklahoma state court went to trial in May 2019.³⁰

None of this is to suggest anything derogatory about the MDL process in general or the MDL judge here in particular. However, I argue that the opioid epidemic cases (and cases like it) are not a good fit for MDL treatment and teach us about massive blind spots in the MDL statute and doctrine. There is currently no way in MDL litigation to account for powerful societal and governmental interests that trump litigation efficiency arguments.

One way to fix this blind spot is through the new concept of “MDL immunity.” This doctrinal innovation is one of the main contributions of this Article. I propose that cases by and against government entities must be exempted from generalized MDL treatment. In contrast to other immunities that block liability, this is an immunity from a particular procedural device, namely transfers of cases to a multidistrict litigation proceeding. The best way to accomplish this is through a one-sentence amendment to the MDL statute (Appendix A). Something close to it could also be accomplished without Congressional action by modifying JPML doctrine or changed practices by MDL judges. However, these alternative approaches would not be as formalized and predictable as legislative action.

I make the argument for MDL immunity informed by data collected from state and federal courts on hundreds of cases, cross-referenced with opioid abuse data from the Center for Disease Control³¹ and Census and American Community Survey data. Together, such data provide a broader lens to capture the extent and limitations of the federal opiate litigation. Despite the importance of the opioid MDL, no research has yet examined who actually is participating in the case and which communities are left out from partaking and leadership. The data shows the predominance of atypical leaders in the MDL and normatively relevant absences.

Section 1 will provide an empirically informed description of the federal opioid MDL with a particular focus on the plaintiffs in the case. Section 2 builds on this account to highlight doctrinal and normative concerns that the opioid MDL raises. Section 3 explains the new concept of MDL immunity and how it would address numerous normative concerns and contribute to a more democratic resolution of the opioid epidemic and cases like it.

The doctrinal and empirical contributions of this Article will likely prove useful in other domains as well where local governments struggle to articulate and fund responses to national crises, including litigation surrounding firearms, e-cigarettes, predatory lending, obesity, environmental contamination, global warming, sanctuary cities, and national emergencies declared by the President.³²

I. Who and Who Not

This Section provides an empirically informed perspective of the federal opioid MDL.³³ It focuses on the plaintiffs in the case to highlight the doctrinal incongruity between the MDL statute and the actual configuration of this case.

My account begins with an explanation of data and methods. I collected data on hundreds of cases and cross-referenced them with opioid abuse data and Census data. I then geo-located government entity plaintiffs (the vast majority of plaintiffs in the opioid MDL). This allowed me to highlight connections and discontinuities between plaintiffs in real space and in relation to variables important for understanding the opioid litigation.³⁴ The data reveals that the government plaintiffs in this case are far from homogenous and comprehensively selected.³⁵ Early filers in particular are atypical.³⁶ They clump together geographically and represent communities that tend to be affected earlier and harder by the opioid epidemic than other jurisdictions.³⁷ These early filers also tend to be poorer, less diverse, and less educated than other jurisdictions.³⁸ They have higher numbers of those who are government-insured and those supported by government assistance programs than later filers and other peers.³⁹

The atypicality of early filers is important because only early filers were present when the initial transfer motion was argued, the scope of the MDL determined, and lead counsel proposed and selected. Later filers are in the MDL all the same but did not have a voice in these important stages of the case and continue to be excluded from pre-trial litigation decisions.⁴⁰

Beyond atypical, early filers do not include all jurisdictions that are similarly situated. While three neighboring counties might be virtually indistinguishable in terms of opioid abuse patterns, demographics, government structure, and economics, one county might be an early filer in the MDL case and have its attorney selected as lead attorney; another county might be a late filer with little or no power to affect the direction of the MDL; and a third county might not have initiated any lawsuit whatsoever. Doctrinally this is understandable: there is nothing in the MDL statute that requires these three counties to behave alike even when they are affected by the opioid MDL in a similar way.⁴¹ However, normatively, this is troubling. The following sections will establish the empirical foundations that are the bedrock of later doctrinal and normative arguments.

A. Data

This Section presents a broad overview of the membership in the opioid MDL. The case is a beast. Currently, it is comprised of roughly 1900 cases with more transferred every week by the JPML.⁴² Many cases include multiple plaintiffs, typically many defendants, and many causes of action. The docket sheet currently contains more than 2600 entries.⁴³ There are also dozens of amicus curiae⁴⁴ and a handful of intervenors.⁴⁵

To gain a better understanding of the composition of this MDL, I began by identifying all member cases transferred by the JPML.⁴⁶ I then hand-coded docket identification information, plaintiff names, plaintiff types, original filing courts, original filing dates, and transfer dates.⁴⁷

This dataset provides an initial snapshot of how many plaintiffs are in the MDL, when they originally filed their suits, when their cases were transferred, and what type of plaintiffs predominate. To gain a better understanding of the litigation needs and vulnerabilities of these plaintiffs, I then cross-referenced the MDL data with two other data sources.

The first data source is mortality data from the Center for Disease Control (CDC) and the National Center for Health Statistics (NCHS).⁴⁸ Access to this data is conditional on adherence to data sharing restrictions and NCHS data suppression standards that limit some reporting on the data.⁴⁹ Vital statistics micro-data provides an indication of the timing and extent of the opioid epidemic in different communities based on fatal overdoses.⁵⁰ This data is not without problems and limitations, but it provides important and, to my knowledge, unmatched detail on where and when deaths occur in the United States. This data allowed me to test, for example, whether the MDL plaintiffs mostly consist of counties that were affected earlier or more recently by the opioid epidemic.

The second data source is the U.S. Census and the American Community Survey.⁵¹ This data is used to characterize the counties and cities involved in the MDL with a focus on population numbers, incomes and earnings, age, diversity, household size, presence of veterans, education levels, employment numbers, health insurance coverage (private & public), geographic mobility, poverty, food-stamp recipients, public assistance recipients, and disabled⁵² and vulnerable populations.⁵³ Put crudely, this data allowed me to query, for example, whether only rich or poor counties partake in the opioid MDL.

Merged together, these three data sources provide a novel way to characterize who was an early filer in the opioid MDL (and thus could shape its scope and leadership), who filed later, and who did not file at all. The data shows the predominance of atypical leaders in the MDL and normatively relevant absences.

B. Who

To gain a better overview of this massive case, we can begin by characterizing the types of plaintiffs in the MDL.⁵⁴ While the JPML order creating this MDL focused on government litigants, it is not limited to them.⁵⁵ This Section thus begins with a headcount of the types of plaintiffs in this case, asking whether government litigants still predominate. Within the subset of government litigants, different types of government entities at different levels have varying responsibilities and abilities. This Section thus also inquires at what level the brunt of the government litigants govern.

Table 1. Types of Plaintiffs in MDL #2804, National Prescription Opiate Litigation, as of 2/14/2019

Type	Number	Percentage
Federal	0	0
State	45⁵⁶	2.4
County	871	47.0
Municipality	506	27.3
Sub-Municipality	34	1.8
Union	28	1.5
Business	119	6.4
Non-profit	37	2
Individual	129	7.0
Tribe	81	4.4
Total	1850	100%

Note: “Counties” include county-equivalents like Louisiana Parishes. “Municipalities” include cities, towns, townships, villages and the like. “Sub-Municipalities” include city police departments, jails, hospitals, and schools. As such, this category includes government structures subsidiary to counties and cities. Future researchers might desire a more fine-grained distinction but, given the low numbers, that seemed unnecessary in the context of this study. “Union” includes sub-units of unions and related entities, such as union retirement funds. “Tribe” includes state and federally recognized tribes. The percentage might not add up to 100% because of rounding above.

Table 1 makes clear that the brunt of the plaintiffs in this MDL are counties and municipalities (about ¾ of all litigants). The federal government and a large number of affected federal agencies could be part of the MDL; nothing in 1407 or JPML rules prevents the inclusion of federal government litigants as plaintiffs or defendants.⁵⁷ The U.S. Department of Justice briefly considered joining the case and asked the court for additional time to consider this option in light of the massive and multifaceted impact of the opioid crisis on federal services, federal programs, and federal law enforcement activities.⁵⁸ Ultimately, the federal government decided to participate only in an amicus capacity⁵⁹ and as a non-party discovery target.⁶⁰

While not a type of litigant, this is also a good time to briefly explore the representative status of litigants within putative class actions. An MDL is not a class action⁶¹ though it has features that resemble class actions.⁶² Within the MDL, any plaintiff could theoretically move for class certification.⁶³ Currently only a few plaintiffs have sought class certification. They include individual opioid users,⁶⁴ hospitals,⁶⁵ unions,⁶⁶ and parents and legal guardians of infants born with neonatal abstinence syndrome resulting from in vitro opioid exposure.⁶⁷ The court has made no indication that it will permit class certification to move forward any time soon.

C. When

When created, this MDL consisted of forty-six cases.⁶⁸ Since then, it has grown to almost 1900, with more cases added week after week. This Section examines this growth and inquires into the timing of new actions filed and transferred. Timing is relevant for numerous reasons, chief among them is the ability to control litigation. For example, plaintiffs who filed their opioid cases after October 2017 did not have an opportunity to argue to the JPML whether these cases were suitable for MDL treatment, where the MDL should be situated (the transferee district), or which federal judge should be in charge of all of these cases (the transferee judge). Later filers were, by and large, stuck with decisions that they had no opportunity to shape.⁶⁹

Similarly, one of the first orders of business once the MDL was created was to select lead attorneys. Only they have the power to litigate, and they are in charge of negotiating global settlements.⁷⁰ Plaintiffs who filed after December 2017 could not have their attorney selected as lead attorney. Also, steering committees and related organs do not have to be static but display a tendency toward the status quo. Simplifying a great deal, litigants whose cases were in the MDL early have a far greater chance of having their attorney in a position of control and power than late filers. Figure 1 presents a week-by-week count of filings.

Figure 1. Weekly Number of Filings of Cases in MDL #2804

Notes: Each vertical bar represents the number of filings in a given week. Cases are counted for the purposes of Figure 1 when they were originally filed or originally removed to federal court, rather than when they were ordered transferred to the MDL or actually transferred. The first vertical line indicates when the initial 1407 motion was filed. The second vertical line indicates when the JPML created this MDL and transferred the first set of cases.

Figure 1 illustrates how late filers numerically predominate over the original plaintiffs in this MDL. Most cases now in this MDL were filed after the order to centralize. Figure 1 also provides vague hints at filing incentives. If many would-be plaintiffs sat on the sidelines and waited for the 1407 motion to succeed, we would expect a dramatic influx of cases right after December 2017.⁷¹ That is not the case here. But neither is the flipside. If most potential opioid litigation plaintiffs detested MDL treatment, we would expect a drop of filings after December 2017.⁷² That is also not the case here. Instead, the data demonstrates a steady increase and eventual platooning of cases over the next twelve-month period (that might be due, in part, to more awareness about opioid litigation rather than appetite or distaste for MDL proceedings). The median number of days between filing/removal of a case and completed transfer to the Northern District of Ohio is twenty-four days.⁷³ This suggests that the JPML is highly efficient at detecting and transferring tag-along cases.

Beyond overall numbers, I am also interested in who filed when. As the previous section indicated, the majority of plaintiffs in this MDL represent different kinds of governments, mostly counties, cities, and tribes. Figure 2 examines filing patterns across these three groups that account for more than three-fourths of all plaintiffs in this MDL.

Figure 2. Weekly Number of Filings of Cases in MDL #2804 for County Litigants (Panel 1), Municipal Litigants (Panel 2), and Tribes (Panel 3).

Figure 2 demonstrates that counties are not just numerically predominant; they also were the most common early filers. Tribes, in contrast, filed their lawsuits later. Not a single tribal litigant was present when the initial 1407 motion was made, argued, or decided.⁷⁴ Similarly, no tribal plaintiffs were in the room when lead counsel for the MDL was selected.⁷⁵ This is troubling. Insofar as these different governments have different sovereign powers, resources, responsibilities, exposure, and vulnerability to the opioid epidemic, this filing pattern paired with early and consequential litigation decisions suggests that entire categories of litigants might not be well-represented when it comes to making decisions about this litigation.⁷⁶

Perhaps in response, and as suggested by the JPML,⁷⁷ the presiding judge in the opioid MDL created a separate track for tribal plaintiffs.⁷⁸ Though a step in the right direction, this track cannot solve more fundamental problems. The track for tribal cases is controlled by two tribal plaintiffs.⁷⁹ They are able to litigate, within set boundaries, their own cases. The tribal litigants not selected for this leadership in this track still have no control or voice about litigation decisions. For example, they are powerless to shape discovery requests or pre-trial strategy. These decisions are made by lead counsel and the attorneys for the two tribal cases that were selected before many of these plaintiffs ever filed suit.

These filing patterns suggest that a few litigants that filed early, mostly counties and some cities, might have a disproportionate voice in litigating this MDL. This raises the question of who these litigants are and how they compare to litigants that filed later and governments that never filed suit. The following sections turn to these questions.

D. Where

One way to get an initial and intuitive sense of who the primary government litigants are is to geolocate them. Geography is information-rich, multifaceted, and underutilized. Representing litigation in real space can be a useful way to explore connections and discontinuities. I begin with a look at counties (the most common plaintiff type), highlighting all counties in the continuous United States that are currently in the MDL.⁸⁰

Figure 3. County Governments in MDL #2804

Figure 3 is a reminder about the breadth and depth of this MDL. It highlights just how many county governments are involved in this MDL. Figure 3 also presents many puzzles. Why are most of the counties of some states (e.g., Wisconsin) in this MDL while no counties from other states are present? Even in states where many counties filed suit, why did others not? We will explore some of these questions in later sections.⁸¹ Before tackling those questions, I return to a previous question about early and later filers: who are the early filers identified in the previous section? Where are they located? Figure 4 provides an initial answer. It colors different counties in this MDL by when they filed suit (Appendix B provides figures that reproduce this information in a greyscale version).

Figure 4. County Governments in MDL #2804 Colored by Filing Window

Notes: Counties shaded dark yellow filed suit before the initial 1407 motion was filed. Counties shaded light yellow filed suit between when the initial 1407 motion was filed and when the JPML ordered MDL treatment. Counties in descending shades of green filed suit afterwards (receiving a new color every passing 6 months). See Appendix B for a greyscale version of Figure 4.

Figure 4 makes clear that the early filers are not geographically diverse. The vast majority of early filers are from West Virginia,⁸² Kentucky,⁸³ and Southern Ohio.⁸⁴ Only one county outside of this region, San Joaquin County in California, was part of the initial1407 motion. Not represented on this map are non-county litigants.⁸⁵

As the map shows, the early plaintiffs in this MDL clump together in one part of the country. Geographic proximity is of course not inherently bad (or good). However, it raises the question of whether those counties are anomalous in ways relevant for this MDL.

E. Opioid Deaths

The first and perhaps most important variable to consider when evaluating these counties, and the extent to which they might be anomalous, is their exposure to the opioid epidemic. A county’s experience with opioid abuse is likely to shape its thinking about lawsuits against opioid manufacturers and distributors. I begin with a county-by-county overview of the average per capita number of opioid deaths between 1999 and 2016 (Appendix C provides this information in a greyscale version).

Figure 5. Yearly Per Capita Average of Opioid Deaths Between 1999 and 2016 by County

Notes: Red indicates a higher rate and blue indicates lower rates. Grey indicates missing or significantly incomplete data. See Appendix C for a greyscale version.

Figure 5 provides a basic sense of where the opioid epidemic has caused the most harm. The primary lesson for the purposes of this Article is that opioid deaths are not evenly distributed around the country. Instead, there are distinct pockets where opioid deaths are significantly higher than surrounding areas. This raises the question: how are opioid deaths related to participation in opioid litigation?

There are many ways to tackle this question, but an initial way is to compare Figure 4 (MDL participation) and Figure 5 (opioid deaths). Both figures suggest a concentration of activity in West Virginia, nearby counties in Ohio and Kentucky, as well as isolated counties elsewhere in the nation. To hone in further on potential connections, Table 2 compares average opioid death rates across counties by the participation status of those counties in the federal opioid MDL.

Table 2. Opioid Deaths per 100,000 Residents per Year across Litigation Categories

	Early in MDL	In MDL	Not in MDL	All Counties
Average 1999-2016	17.06	10.57	8.90	9.33
2016 only	25.02	17.32	15.77	16.17
1999 only	10.51	5.92	4.60	4.94

Table 2 again shows that some counties experienced a much higher average death rate than others (an average death rate of 9.33 for all counties and almost twice as much for others). Similarly, some counties were affected by the opioid epidemic much earlier and therefore much longer than others. The numbers also suggest a ghastly increase in the opioid death rate over time.⁸⁶

To apply these general observations to the litigation at hand, Table 2 shows opioid death rates by broad categories: for those counties in the MDL that filed opioid-related suits before consolidation, all those in the MDL (whether they filed early or recently), those counties not in the MDL at all, and for all counties in the nation (as a baseline comparison category). This categorization suggests that the actual and potential county litigants are differently situated. Early MDL filers have been affected the most by the opioid epidemic and the longest (their death rates were among the highest as far back as 1999). Other counties in the MDL have numbers slightly above the national average but lower than early filers. Counties not in the MDL tend to be less affected.

In one way, this makes intuitive sense: the counties most impacted by the opioid epidemic do and perhaps should take the lead in litigating opioid cases. However, there are two problems with this intuition. First, even counties not at the top of the impact distribution are massively affected by the opioid epidemic.⁸⁷ Though less than some, they are still affected in ways that strain their ability to govern.⁸⁸ Similarly, while some of the counties might not have been affected as early as others, they are still now in the midst of a massive crisis.⁸⁹ “Less affected” in this context is relative indeed and provides little comfort. Second, while many of the counties most and longest affected by the opioid epidemic are early filers in the MDL, there are others similarly situated who are not.

Figures 6.1-6.3 sharpen this point. These figures present monthly moving averages of per capita deaths from drugs. Each line represents one county or county-equivalent. I split up the counties once again into three categories: early participants in MDL 2804 (Figure 6.1), those who filed later (Figure 6.2), and those who have not yet filed (Figure 6.3).

Figure 6.1. Monthly Moving Average Per Capita Drug Deaths by County (2003-2017)—Early Filers in MDL #2804

Figure 6.2. Monthly Moving Average Per Capita Drug Deaths by County (2003-2017)—Not-Early Filers in MDL #2804

Figure 6.3. Monthly Moving Average Per Capita Drug Deaths by County (2003-2017)—Not in MDL #2804

These figures graphically recreate the basic insights of Table 2 (increase over time, variation between the three groups). However, they are much messier and much more difficult to read than Table 2 due to the massive amount of data represented here. The added complexity is justified because these figures convey, much better than my words could, that yearly averages between groups, while helpful, hide tremendous variation. Figures 6.1-6.3 show huge variation between counties even in the same group, and the figures show important variation across time. For example, even within the few counties that filed early (Figure 6.1), and that on average were much more affected by the opioid epidemic than most other counties, Figure 6.1 suggests different experiences. For example, some counties trend upward in recent years and some downward. Some experienced spikes in deaths and others steady developments. Some were affected earlier than others.

Similarly, a look at Figure 6.2 and Figure 6.3 shows that while these categories of counties (late filers and counties that have not filed yet) are on average less affected than earlier filers, they contain counties with high and early opioid exposure. Averages and medians can obscure such variation. In the interest of space and analytical focus, much of the remainder of this Article will focus on a handful of summary statistics. Such an approach allows me to focus on a few stark, overarching points. However, it also entails a loss of important details and variation (and this Section was dedicated to highlighting the existence of such variation). As such, I present the following solely as an initial broad-brushstrokes, descriptive account and leave for future work more detailed examinations of different facets of the opioid epidemic and opioid litigation.

F. Demographics

The previous section explored how various actual and potential county litigants differ with regard to exposure to the opioid epidemic. This Section does the same for variables that are useful to understand the opportunities and vulnerabilities of these litigants. It compares, again, counties across categories (early filers, any filers, non-filers, and the comparison category of national medians). I begin with broad demographic variables before turning to education, income, insurance status, mobility, and poverty.

Table 3. Initial Demographics

	Early in MDL	In MDL	Not in MDL	All Counties
Population	63,230	147,853	83,819	100,027
Non-White %	8.06	17.60	16.74	16.96
Hispanic/Latino %	2.49	7.67	12.30	11.13
Non-U.S. Citizen %	1.00	2.72	2.85	2.81
Average Household Size	2.52	2.53	2.54	2.54
Veteran %	8.75	9.23	9.37	9.33

Notes: All terminology and definitions of populations are those used by the U.S. Census Bureau.

Early and later filers in the MDL are not exceptional in some ways. The median age across all categories of counties is roughly the same and so is the average household size and the percentage of the population that has served in the military.⁹⁰ However, there are also significant departures. Race, Hispanic/Latino status, and citizenship stand out as clear, distinguishing elements.⁹¹ Counties included in the MDL that filed early are significantly less diverse and international than other counties in the nation.⁹² This is significant because these factors have historically played a complicated role in accounts concerning drugs, drug policy, and moral accountability.⁹³ Discussions about drugs, whether legal or illegal, crack or OxyContin, are rarely only about drugs.⁹⁴ Instead, they are often tied up with narratives about entire categories of people.⁹⁵ Even if we conceptualize the opioid epidemic not in criminal terms but as a public health crisis⁹⁶ (perhaps a choice that is itself intertwined with questions of race),⁹⁷ it is still difficult to avoid the allure of metaphor and grand narratives.⁹⁸ I worry about the wisdom of focusing on race in discussions about drugs (unless, of course, medically useful). But perhaps it is inevitable and future researchers might find this data useful to explain, for example, shifting public sentiments or regulatory approaches. Table 4 shifts toward related considerations of education.

Table 4. Education

	Early in MDL	In MDL	Not in MDL	All Counties
High School or Higher %	74.59	79.95	80.11	80.07
Bachelor or Higher %	16.09	20.55	20.87	20.79

Notes: All terminology and definitions of populations are those used by the U.S. Census Bureau.

Again, breaking apart the variables of interest by categories shows that counties that are early MDL filers tend to have populations that are less educated than their peers. These counties have a lower percentage of high school graduates and individuals who completed an undergraduate degree. This might be relevant because populations that received more or less formal education might systematically vary in terms of how they react to medical claims; their susceptibility to marketing strategies, their ability to obtain multiple medical opinions and evaluate them; how much sympathy they receive from doctors; and ultimately, their ability to use opioids without overdosing.⁹⁹ Also, insofar as a potential resolution to the opioid epidemic contains a public awareness campaign, as the tobacco settlement did,¹⁰⁰ then it should be mindful that populations with different education levels might be exposed and respond to such a campaign differently. Also, formal education is linked to income levels. Table 5 explores questions of income and employment.

Table 5. Income and Employment

	Early in MDL	In MDL	Not in MDL	All Counties
Median Household Income	41,972	46,503	47,506	47,252
Median Individual Earnings	27,272	27,769	27,925	27,886
Female/Male Earnings Ratio	0.6728	0.6793	0.6788	0.6789
No Work at some Point in Time in the last Year	34.70	28.39	26.90	27.28

Notes: Household income and individual earnings are reported as medians by county. Because both distributions are heavily skewed, these numbers are significantly lower than national averages.

Table 5 shows that early filer counties have a significantly lower median household income than all other categories of counties. This suggests that people in these counties are generally poorer than their peers and that these counties have a smaller tax base from which to fund opioid related expenses. Later filing counties are poorer than counties not in the MDL, but the difference is far less stark.

Individual earnings are more comparable between all categories of counties. This suggests that counties included in the MDL that filed early and later have lower labor participation rates than their non-MDL litigating peers. Relatedly, while individual earnings are comparable, labor stability is not. Individuals in early filer counties reported at much higher rates that, at some point in the previous year, they had no work. This suggests a more transient labor force that lacks stable and consistent work.¹⁰¹

Employment is frequently not only a source of income, but also health care benefits. Table 6 explores health care coverage.

Table 6. Health Insurance Status

	Early in MDL	In MDL	Not in MDL	All Counties
% with any insurance	89.52	88.28	87.76	87.89
% with private insurance	59.01	63.93	64.02	63.99
% with public insurance	43.71	38.26	37.66	37.81

Notes: All terminology and definitions of populations are those used by the U.S. Census Bureau.

Table 6 shows that early filing counties have a higher percentage of individuals living within them that have health insurance than their peers. This alleviates to some extent fears that a population suffering from the opioid crisis might do so without insurance coverage. However, it is important to recognize that early filing counties have a lower rate of private insurance coverage than other counties and a higher percentage of individuals with public coverage.¹⁰² This highlights the burden that the opioid crisis has imposed on public sector insurance programs in general¹⁰³ and particularly in the counties that decided to file suit early. It also suggests that government units might have a greater or different insurance-coverage based interest in resolving the opioid crisis. Conceivably, the effects of the opioid crisis might be most apparent in the jail bookings of one county and the health insurance payments of its neighbor.

This example also reminds us about the possibility of people moving around. Opioid use is not inherently static. Somebody might start taking legally prescribed opioids in one county, become dependent in another county, switch to illegally obtained opioids in a third, cause expenses in a fourth, and die in a fifth. All of these five counties are affected by the opioid crisis but in different ways. As such, this Article inquires into the extent to which people are mobile and move around.

Table 7. Mobility

	Early in MDL	In MDL	Not in MDL	All Counties
Internal move within state	3.65	4.08	4.31	4.25
Move from different state	1.80	1.99	2.27	2.20
Born in state of residence	76.15	69.15	64.63	65.78

Notes: Internal moves within a state include only moves from one county to another within the last year. Moves from different state are within the last year.

Table 7 uses three proxies for overall mobility. The first proxy is the percentage of people who moved from one county to another within the same state in the last year. The second proxy measures how many people in a county have moved there from another state withinthe past year. The third proxy counts the percentage of residents who were born in the same state where they now reside. On all three measures, early filers and all counties in the MDL exhibit less mobility than other counties. Insofar as people affected by the opioid crisis do not move around, they remain the responsibility of the same county. This reduces, but does not eliminate, one aspect of the complex causation issue inherent in governments suing in relation to a public health crisis that affects their past, current, and future residents. Table 8 turns to some of the most vulnerable residents in these counties.

Table 8. Vulnerability and Assistance

	Early in MDL	In MDL	NOT in MDL	All Counties
Poverty %	21.15	17.51	17.09	17.20
Disability %	20.41	16.20	15.87	15.95
Food Stamps %	20.43	15.62	14.53	14.81
Public Assistance %	28.21	25.44	26.31	26.10
Vulnerability Index	0.1378	-0.0093	0.0031	0

Notes: The Vulnerability Index is normalized to the national mean.

Table 8 demonstrates the extent to which early filers and counties in the MDL that filed later have higher percentages of vulnerable populations than their peers. They have more residents who are experiencing poverty, more people with disabilities, and more vulnerable individuals (those particularly young or old). This is true for all counties in the MDL and even more so for the ones that filed first. Not surprisingly, these counties tend to have populations with more need for assistance such as food stamps.

Given the extent of the opioid crisis, it is difficult to know whether the opioid crisis is the cause or effect here. I suspect, without knowing, that the opioid crisis did not create these effects but likely exaggerated them, perhaps, as some allege, because opioid manufacturers specifically targeted vulnerable populations.¹⁰⁴ Suffice it to say here that the counties in the MDL, and the earlier filers in particular, have significant percentages of people in need of assistance. They are among the worst situated to deal with a massive public health crisis.

G. A Story in Numbers

These numbers, tables, and figures tell a story. They present a broad-brushstrokes portrait of the potential plaintiffs that chose to participate in this MDL and those that did not. This portrait allows us to better understand, in the aggregate, the challenges and vulnerabilities of different actual and potential litigants. As we will see in the next section, MDL doctrine does not take into account many of these elements.

II. Normative Concerns

MDL litigation faces many critics,¹⁰⁵ but the descriptive account of the previous section highlights a problem that has largely escaped scholarly attention: the MDL statute focuses on cases that present “common questions of fact” and where transfer serves the vague goals of furthering “the convenience of parties and witnesses” and “promot[ing] the just and efficient conduct” of transferred cases.¹⁰⁶ The JPML is charged with interpreting these terms and ordering or denying the transfer of cases¹⁰⁷ with little supervision.¹⁰⁸ The JPML has power over all cases in federal courts, and its decisions to transfer are not limited by personal jurisdiction considerations.¹⁰⁹ It weights the centrality and heft of common issues of fact, the potential for litigation efficiency gains (e.g., through minimizing duplicative discovery), how far advanced different cases are, and perhaps party preferences.¹¹⁰ When weighing the creation of a new MDL and transferring new potential member cases, the JPML seems most concerned with the benefits of consistent and uniform pretrial rulings.¹¹¹

In the context of the opioid MDL, the benefits of consolidated pre-trial treatment are massive. For example, discovery under a single judge will be more consistent, focused, and efficient than discovery rulings by many judges around the country deciding identical or similar issues over and over.¹¹² However, while the benefits might be massive, so are the overlooked costs: the MDL statute does not test for broader social and governmental interest that might not be served in a given set of cases by MDL treatment.

This Section turns to these doctrinal and normative concerns that the descriptive account above indicated. It is a free-standing account that is not dependent on the descriptive account but is bolstered by it.

A. Heterogeneity and First Mover Idiosyncrasies

All aggregate litigation struggles with balancing efficiency and norms that prize autonomous party adversarialism.¹¹³ MDL transfers might, at first sight, present few tradeoffs because 1407 only allows transfers for “pretrial proceedings” and, in contrast to class actions, includes no device to force settlements onto unwilling litigants.¹¹⁴ However, this should not blind us to the important costs imposed on individual litigants, especially those not selected as lead counsel or included in any steering committees.¹¹⁵ For example, they must ask the court for permission to file any motions, and they are often prevented from making motions that would be routine in non-MDL litigation.¹¹⁶ Plaintiffs excluded from MDL leadership roles have few tools available to influence the course of litigation.¹¹⁷ For example, imagine that one of the plaintiffs in the MDL does not agree with the lead counsel’s approach to, say, discovery strategy.¹¹⁸ All they realistically can do is wait, often for years, before their case becomes eligible for a transfer back to the district where they first filed their suit and before it was transferred to the MDL. Once back home, they are still largely stuck with the pretrial rulings that they had little chance to influence.¹¹⁹ Most of the plaintiffs in the MDL have effectively no control over lead counsel and the steering committees, yet the decisions of these other attorneys have, in practice, massive consequences over how well any one case is prepared for trial and whether a party can credibly seek a high or low settlement value.¹²⁰

Who is selected into MDL leadership roles is, in short, very important. It matters tremendously to those attorneys who receive more money, more recognition, more experience, and a higher chance to be selected as lead counsel in the next MDL proceeding.¹²¹ But even more significant, selection of MDL leadership also matters to the clients of those attorneys. An MDL is not a class action proceeding and does not feature the same structural due process protections.¹²² MDL lead counsel does not become counsel for all member cases in the MDL. Each plaintiff in each member case (including the case that furnished lead counsel and other MDL leadership roles) retains the power to hire, direct, and fire his or her own attorney.¹²³ The ethical duties of those attorneys also run to their clients, not the clients of other attorneys in the MDL.¹²⁴ Key MDL leadership roles are few in number,¹²⁵ powerful, and linked to the clients of the attorneys in the leadership roles.¹²⁶

The overbearing influence of lead counsel in MDL cases is a concern in any MDL proceeding.¹²⁷ It is of heightened concern in the context of the opioid litigation because the plaintiffs here are unusually heterogeneous along many dimensions. First, the plaintiffs encompass many different types of litigants, including government litigants, non-profits, businesses, and individuals.¹²⁸ Second, even within each of these categories there is important variation. For example, there are individuals in the litigation who are suing on their own behalf, who are suing on behalf of somebody already dead, and who are suing on behalf of their children who were exposed to opioids before birth.¹²⁹ Similarly, within the category of government litigants there are states, counties, municipalities and sub-municipalities. Even if we just focus on the largest category of plaintiffs (counties), there is massive variation in location, population, wealth, litigation resources and experience, governing powers and responsibilities, and varying exposure to the opioid epidemic (early/late, low/high, legally prescribed/illegally obtained).¹³⁰ This extreme variation sets the opioid epidemic plaintiffs apart from those in many other MDL cases where similarly situated individual consumers allege more comparable harm.

Not only are the potential and actual plaintiffs here extremely heterogeneous, but the early filers are also idiosyncratic. They differ in important and systematic ways from later filers (now in the MDL) and non-filers. Early filers have a profile that suggests a stance toward the opioid epidemic that is different in multifaceted ways from the stance of later filers. Yet, only the early filers were present when the MDL consolidation motion was first argued, when people were nominated for key leadership positions,¹³¹ and when they were filled.¹³² At that point in time, the court was only able to select attorneys for leadership roles from among the fifty or so cases that were in front of the court.¹³³ The plaintiffs in the 1900 cases that were filed later are represented by their own attorneys, but these attorneys have little influence over the litigation and were never considered for leadership roles.¹³⁴

The attorneys in those leadership roles represent clients who are unlike many of the plaintiffs that are now in the MDL. As the previous section showed, there is reason to believe that litigation interests of these differently situated plaintiffs might diverge in relevant ways. When they do, will lead counsel pick the course of action in the best interest of her individual client?¹³⁵ Or what is in the best interest of the “average case” currently in the MDL? Or what might further the interests of potential plaintiffs that will likely join the MDL some day? If lead counsel is primarily concerned with her own client, then that attorney might pick a litigation strategy best suited for the individual circumstances of her own client. Other cases in the MDL might be shortchanged.¹³⁶ The other plaintiffs in the other MDL cases might face very different individual circumstances, and their attorney would have chosen a course of action more attuned to the needs, interests, and vulnerabilities of her client.

Not surprisingly, numerous plaintiffs in the MDL have stressed that they do not feel properly represented and that the individual circumstances between the various plaintiffs vary too much.¹³⁷ They argue that no leadership structure could hold together such diverse members.¹³⁸

The court has responded to concerns about heterogeneity in the litigation in part by creating different “tracks” for different cases. For example, Case Management Order No. 1 selected a handful of plaintiffs (out of more than 2000) for the litigation track.¹³⁹ These cases are being prepared for trial while all others do not receive the same attention. Later court orders established additional tracks (e.g., one for a handful of tribal cases)¹⁴⁰ and refused to establish other tracks (e.g., for the so-called opioid baby claims).¹⁴¹

While different tracks help to alleviate the problems of heterogeneity and idiosyncrasies, they cannot plaster over the important differences between different litigants in any given track. For example, in the track for Native American Tribes, the court selected a few tribes as lead plaintiffs who can now litigate in ways that the remaining tribal track plaintiffs cannot.¹⁴² The creation of this track recognizes the important differences between tribal governments and non-tribal governments. However, tribes vary tremendously in ways that are relevant for this litigation. They vary in population, wealth, governing capacity, litigation resources, geography, geographical concentration, reliance on federal health care measures, and many more variables.¹⁴³ This variation makes the tribal track a poor substitute for local and individualized litigation that would be more mindful of individualized circumstances. Similarly, tribes that were not included by the time the lead cases for the tribal track were selected did not even have a chance to be selected. These plaintiffs, just like the majority of those currently in the MDL, are stuck watching another government’s attorney litigate, also not on their behalf.¹⁴⁴

B. Black Holes

Beyond control, there is the question of time-to-resolution. Speed is always a concern in litigation.¹⁴⁵ How long cases in the opioid MDL take to resolve is of particular concern because of the opioid epidemic’s horrendous scale. If some or all of the plaintiffs are indeed entitled to relief under the law (monetary or injunctive), then it is vital that they receive such relief as quickly as possible. Early relief would put them in a stronger position to battle the opioid litigation, either through injunctions that slow the flow of medically unnecessary opioids or through monetary relief that could be used to fund important government functions connected to the opioid epidemic. If the plaintiffs are not entitled to relief under the law, then this would be important to know sooner rather than later as well, so that these government units can focus their attention and resources to pursue other avenues to battle the opioid epidemic (e.g., taxation of opioids or further federal and/or local regulations).

How long the litigants in the opioid MDL have to wait until these cases resolve is anybody’s guess. MDL cases typically remain in coordinated or consolidated proceedings until pretrial matters are concluded, the case settles, or the MDL court grants a dispositive motion that terminates the cases.¹⁴⁶ It is difficult to predict how long this will take in the opioid case. Generally, MDL litigation takes a significant time to reach resolution, much longer than the average non-MDL litigation.¹⁴⁷ This type of litigation has been described, famously, as the “‘black hole,’ into which cases are transferred never to be heard from again.”¹⁴⁸ For some MDL judges, remand equates to failure.¹⁴⁹

In the case of the opioid litigation, we can gather more clues about the speed of litigation through a look at the litigation track that the court established. Only cases that were filed in the district where the MDL takes place,¹⁵⁰ or where the parties waived jurisdictional defenses, are eligible for trial in that locale.¹⁵¹ The few cases in this track are the only ones that are currently prepared for trial. The hope is that they will serve as bellwether trials that can inform settlement negotiations.¹⁵² As such, the court and many commentators do not expect significant developments in non-litigation track cases until, at the very least, the trials of these cases have completed.¹⁵³

Originally, the MDL court hoped for trials in these cases to begin in March 2019.¹⁵⁴ Commentators were impressed by the suggested speed of litigation.¹⁵⁵ However, the original trial date has been pushed back a few times, first to September,¹⁵⁶ then October,¹⁵⁷ and it might be pushed back further still.¹⁵⁸ Half of the original bellwether cases have been postponed indefinitely until trial in other cases has completed.¹⁵⁹

Even with the remaining few cases concluded, there is no reason to anticipate a global solution shortly thereafter. Diverse plaintiffs with individualized discovery needs are unlikely to benefit from the bellwether trials of plaintiffs that are differently situated and few in number.¹⁶⁰ Whether these first plaintiffs win or lose would tell other plaintiffs little about the strengths or weaknesses of their own cases. Before taking their own cases to trial or settling, many might desire individualized discovery that has not yet taken place and that could take many more months to complete after the first round of trials.

The litigation in the opioid MDL so far has been focused on the cases that are being prepared for trial. There has been little attention focused on the non-litigation track cases. For example, twenty-three sovereign Indian tribes moved “to be Allowed to Conduct Discovery on Certain Issues that are Unique to the Claims of Indian Tribes”¹⁶¹ The court denied the motion the next day as “untimely and a waste of judicial resources” because some cases of other tribes were selected for the litigation track to serve as bellwether cases.¹⁶² This means that the non-selected cases linger in limbo without further discovery taking place. The discovery in the selected cases might be useful for non-selected cases but, at least in this instance, numerous plaintiffs seem to have preferred their own individualized discovery.¹⁶³ For now, MDL treatment of the opioid cases has mostly bought the defendants time¹⁶⁴ without providing significant efficiency gains thus far.¹⁶⁵ Some litigants fear that defendants will use this time to move assets abroad,¹⁶⁶ file for bankruptcy,¹⁶⁷ and otherwise make it difficult for plaintiffs to execute a potential judgment down the road.¹⁶⁸

Contrast the delay in waiting for the result of bellwether cases with some of the opioid cases that remained in state courts and thus beyond the power of the JPML to order transfer to the federal MDL.¹⁶⁹ For example, one opioid case was filed in Oklahoma state court and became non-removable, seemingly because of a mistake by counsel for the defendants.¹⁷⁰ The case has remained in state court despite subsequent efforts to remove to federal court and invoke 1407. The Oklahoma case was filed around the same time as hundreds of others now in the federal opioid MDL. While most of the federal cases appear years away from deep and individualized discovery and an on-the-merits adjudication, the case in Oklahoma state court went to trial in May 2019, and judgment was granted in August.¹⁷¹ Attempts by the defendants to delay trial largely failed.¹⁷² While the federal MDL slowly proceeds in Cleveland (the city), the most advanced state opioid case already ended in Cleveland County (Oklahoma).

The local trial in Oklahoma is not the only lawsuit that remained outside of the federal MDL. Other examples include Alabama,¹⁷³ Alaska,¹⁷⁴ Arizona,¹⁷⁵ Delaware,¹⁷⁶ Florida,¹⁷⁷ Indiana,¹⁷⁸ Kentucky,¹⁷⁹ Louisiana,¹⁸⁰ Massachusetts,¹⁸¹ Mississippi,¹⁸² Missouri,¹⁸³ Montana,¹⁸⁴ New Hampshire,¹⁸⁵ New Jersey,¹⁸⁶ New Mexico,¹⁸⁷ New York,¹⁸⁸ North Carolina,¹⁸⁹ Ohio,¹⁹⁰ South Carolina,¹⁹¹ and Washington.¹⁹² Many of them are moving far quicker toward resolution than their MDL litigation track counterparts, and all of them are moving faster than the MDL cases not on the litigation track.

C. Distance

Beyond concerns about speed, there are also concerns about distance. Most of the plaintiffs in this MDL filed in their home districts, a place as close as possible to where they are located. Inherent in the MDL process is a transfer away from such home districts to any one of the federal districts in the country (in the opioid litigation, the Northern District of Ohio).¹⁹³ The JPML has power over all cases in federal courts, and its decisions to transfer are not limited by personal jurisdiction considerations.¹⁹⁴ While it takes geography into account, sometimes,¹⁹⁵ it is not constrained by it.¹⁹⁶ In the case of the opioid MDL, the JPML considered geography and picked a district nearby.¹⁹⁷ But it only focused on proximity to defendants, not plaintiffs or witnesses.¹⁹⁸ Even if the JPML had considered plaintiffs, as it sometimes does, it might have focused on current plaintiffs, rather than potential plaintiffs that might file suit at some later point in time. As we saw, the early filers geographically clump in the Appalachian region, close to Ohio.¹⁹⁹ Later filers do not. They are spread all over the country just as the opioid epidemic has spread all over the country. For many, consequently, the opioid MDL takes place in a distant forum.

Distance has numerous consequences.²⁰⁰ The farther away the courthouse where a case is litigated, the less of a practical opportunity for parties to attend, for the local public and press to observe proceedings, and for witnesses to testify.²⁰¹ For example, the county commissioners of a west coast county might find it difficult and expensive to periodically travel all the way to the Northern District of Ohio to see in person how the litigation is proceeding.²⁰² If the same case was litigated down the street in a local courthouse, they might view things differently. Distance, as such, might shift control over litigation away from clients to attorneys, and, as we have seen, likely other people’s attorneys.²⁰³

Beyond travel woes, there are additional reasons to worry about proximity. Opioid abuse is a national problem, but its effects and conditions of growth are inherently localized. Similarly, the ability of a local government to respond to the opioid epidemic is inherently tied up with localized and often idiosyncratic governing abilities, powers, and fiscal limitations.²⁰⁴ This variation will call for non-common discovery on a volume that the MDL will not be able to handle efficiently or quickly.²⁰⁵ Similarly, since MDL transfers are for coordinated or consolidated pre-trial purposes only, the governing choice of law does not change when a case is included in MDL.²⁰⁶ In other words, the opioid litigation MDL contains cases that are governed by all kinds of different state law.²⁰⁷ Since discovery needs are tied to substantive law and since the substantive law varies tremendously, so do the discovery needs of many member cases in the opioid MDL.²⁰⁸ Local judges familiar with local substantive law examining local witnesses will be in a better position than an MDL proceeding to provide for such individualized discovery in a nearby location accessible to local witnesses.²⁰⁹

D. Settlements

These features of distant, slow, and piece-meal litigation also encourage settlements at the expense of on-the-merits adjudication.²¹⁰ Plaintiffs who refuse to settle remain stuck in distant MDL proceedings that they cannot control with little hope to return to his or her home court. Unless a plaintiff is in no hurry to resolve a matter and is willing to by-and-large accept the pretrial litigation decisions of somebody else’s attorney, they have little choice but to accept poor settlement offers.²¹¹ With class actions in decline, the federal judiciary increasingly utilizes MDLs as an alternative procedural vehicle to aggregate a large number of cases and bring them to efficient resolution, which often means settlement.²¹² MDL proceedings are often structured with settlement, rather than litigation in mind.²¹³ MDL judges are encouraged to “make the most of [the] opportunity and facilitate the settlement of the federal and any related state cases.”²¹⁴

That seems to be the case in the opioid MDL.²¹⁵ From the beginning, the court was skeptical of trials²¹⁶ and focused on settlement.²¹⁷ The judge in charge of the opioid MDL indicated that he believes the JPML panel picked him because of his ability to facilitate settlements and avoid trials.²¹⁸ Instead of “a whole lot of finger pointing . . . depositions, and discovery, and trials,”²¹⁹ the court would seek to eliminate barriers to a “global resolution.”²²⁰

Most of the litigation activity in the first year was centered on the handful of “litigation track” cases that were being prepared for trial. However, even this limited focus on trial for a few cases was designed primarily and explicitly with global settlement in mind.²²¹ The court seemed to hope that a few bellwether cases would facilitate settlement of all cases prior to them receiving individualized discovery attuned to the local causes, harm, and effects of the opioid epidemic in the jurisdiction of the local government plaintiffs.²²²

This raises the fear that this wave of opioid litigation will end like the last one. In cases in West Virginia,²²³ Kentucky,²²⁴ California,²²⁵ Illinois,²²⁶ Massachusetts,²²⁷ and a host of other states,²²⁸ many of the same defendants settled cases in the past without admitting wrongdoing and without disclosing to the public the scope and dangers of opioid abuse. Federal²²⁹ and foreign lawsuits²³⁰ fared better in some ways. These cases remind us about the dangers of settlements that do little to stem the tide of opioid addiction and abuse.

Litigation has the potential to educate the public on the causes and effects of the opioid epidemic and shed light on the role some pharmaceutical companies and distributors have played in this crisis. As such, a key aim of many of the government plaintiffs in the opioid MDL is not solely recovery for past harms, but many also stress the importance of public disclosure as a litigation goal to educate the public they represent.²³¹ However, little discovery has taken place so far in this MDL (in part because of the early focus on settlements). The court has interdicted discovery of keen public interest. For example, the court has refused to allow discovery into third-party litigation financing.²³² What little discovery there has been has not been disclosed to the public.²³³ The court has also excoriated the public officials whose lawyers are in the MDL by indicating that information gained during discovery must not be publicly discussed.²³⁴ Most of the discovery related to opioid pharmaceutical companies comes to the public from state court proceedings, not the federal opioid MDL.²³⁵

As the court overseeing the federal opioid MDL argued, disclosure would “contradict the bedrock principle that discovery is a private process, the sole purpose of which is to assist trial preparation and, in this case, global settlement discussions.”²³⁶ I will leave aside the question whether discovery in some cases might be a private process. However, it cannot be in this case. Not only is the subject matter of extreme public concern, but most of the litigants are representing the public.²³⁷ In some instances, protective orders preventing public disclosure of specific pieces of information might, of course, be warranted. But these episodes suggest that the pressures of the MDL process toward settlement might systematically skew the process toward privacy at the cost of public education, public participation, and public benefit.²³⁸

E. Quasi-Sovereigns

The concerns about distant and private proceedings so far have primarily focused on calculations of costs and benefits. However, there is also a more foundational reason to value local adjudication: most of the plaintiffs in this MDL are not ordinary litigants. Instead, the brunt of this MDL is comprised of counties and cities that represent sections of the public at large that are trying to protect their government police powers.²³⁹ Some local government litigants feel that they have an inherent and implicit right to local adjudication²⁴⁰ in furtherance of dispute resolution mechanisms that reflect and enhance democratic principles.²⁴¹

Sub-state government units like counties, municipalities, and sub-municipal units (e.g., school boards) exist in a netherworld of neither being fully sovereign nor fully detached from sovereignty. They are clearly not full sovereigns like states or the federal government.²⁴² For example, counties²⁴³ and municipalities²⁴⁴ cannot invoke sovereign immunity and counties are treated as citizens of their states for federal diversity jurisdiction purposes.²⁴⁵ Still, local governments exert massive influence over the lives of their populations on a day-to-day, intimate, and invasive level rarely matched by state or federal governments. From sheriff departments to firefighters, prosecutors and public defenders, school boards, election boards, local jails, zoning commissions, county courts, and water boards, local governments have the power to do tremendous good and tremendous harm. Additionally, counties and municipalities are often the instrumentalities for the work state sovereigns and the federal sovereign try to accomplish.²⁴⁶ As such, local governments invoke, controversially, a kind of quasi-sovereign power,²⁴⁷ and courts have granted them a kind of local sovereign immunity.²⁴⁸ Whatever the overall wisdom of this approach, courts recognized that local governments have a special role in our system of government by linking full sovereigns to the daily lives of large swaths of the overall population.²⁴⁹

The opioid MDL is inherently tied up with these vital local government functions, and many local governments have elected to protect their populations through litigation. In a democratic system, it is up to the populations of these local governments to judge whether their leaders chose wisely or not and whether the benefits of litigation warranted the costs. But in the context of the opioid MDL, local leaders and their attorneys are not in charge of important decisions.²⁵⁰ Instead, a remote and unaccountable set of other people’s attorneys are making consequential decisions on behalf of other counties, cities, and Native American tribes. Insofar as their decisions will shape outcomes, this represents a kind of commandeering of government decision-making by one local government over another local government. This raises a bucket of thorny philosophical, political, and practical puzzles about the scope of democratic accountability, rights to local self-determination, and intra- and inter-state local government subsidies, taxes, and priorities.

F. Unpredictable

All of the normative concerns outlined above could be alleviated within the MDL process. The MDL judge could allow more parties to file motions. Or he might expedite proceedings. Or the judge could allow for more discovery and disclose more of it to the public. The judge could also return more cases earlier to their original transferor districts where they were originally filed. Or he could create more tracks in recognition of greater variation among the plaintiffs.²⁵¹ Or he could certify a class.²⁵² All of these options, and many more, are on the table because the MDL judge has very broad powers that have traditionally been yielded in creative ways. All pretrial techniques are on the table, including dispositive motions.²⁵³

This makes it difficult, in some ways, to criticize MDL proceedings because any flaw could be remedied or alleviated tomorrow through a creative or even radical use of pretrial techniques. MDL judges are not constrained by the usual rules, traditions, and norms of civil procedure the way that same judge would be in a non-MDL proceeding.²⁵⁴ This flexibility is one of the greatest strengths of MDL proceedings, but also a great flaw because it renders MDL proceedings unpredictable. Every MDL is different and every MDL might change and be dealt with differently halfway through.²⁵⁵ For example, the judge in the opioid MDL was previously in charge of another MDL case, but stressed the uniqueness of each, suggesting that an approach that was taken in one case will likely not work in another.²⁵⁶ This makes it difficult for parties to plan ahead, to make predictions, and to compare current settlement offers to other likely outcomes.

The loosening of the regular constraints on what an MDL judge can and cannot do has a second downside: regular rules embody a careful balance of competing interests, including but not limited to judicial economy.²⁵⁷ Uncoupling MDL proceedings from this balance frees MDL judges to be creative, but it also creates the danger that they will subtly or overtly tilt litigation to further efficiency interests over all others.²⁵⁸ None of this is to suggest anything derogatory about the MDL process in general or the MDL judge here in particular. However, I argue that the opioid epidemic cases, and cases like it, are not a good fit for MDL treatment and teach us about massive blind spots in the MDL statute and doctrine. There is currently no way in MDL litigation to account for powerful societal and governmental interests that trump litigation efficiency arguments.

III. A Proposed Solution

One way to fix this blind spot is through the new concept of “MDL immunity.” This doctrinal innovation is one of this Article’s main contributions. I propose that defined cases by and against government entities must be exempted from generalized MDL treatment. In contrast to other immunities that block liability, this is an immunity from a particular procedural device, namely transfers of cases to a multidistrict litigation proceeding.²⁵⁹ The best way to accomplish this is through a one-sentence amendment to the MDL statute (Appendix A). Something close to the proposed statutory amendment could also be achieved without congressional action by modifying JPML doctrine or by changing the practices of MDL judges. However, these alternative approaches would not be as formalized and predictable as legislative action.

A. Modifying the MDL Statute

The normative concerns outlined above suggest a heightened value for dispersed local adjudication, in a timely manner, on the merits, targeted at the specific and individualized harm suffered in that place, controlled by that plaintiff (e.g., targeting discovery to their litigation goals), and providing resident witnesses a chance to participate, all in front of a local judge and jury that are mindful of local conditions and sensibilities. This is the exact opposite of what the MDL process typically promises and has actually delivered in this case thus far.

This result is not surprising because the statutory mandate in 28 U.S.C. § 1407 does not require the JPML to engage in a solicitous inquiry about the localized litigation needs of government litigants. The statute is structured to emphasize efficient litigation through centralization.²⁶⁰ The JPML in the context of the opioid epidemic, as elsewhere, has lived up to the statutory mandate.

One way to address the heightened need for local adjudication is to exempt government litigants from MDL proceedings. This would guarantee that government litigants are not swept up into distant MDLs. This solution protects the special instrumentalist and deontological reasons for localized adjudication outlined above.²⁶¹ A government that contemplates suit would be guaranteed local adjudication without risk that the JPML engages in a vague case-by-case analysis of whether transfer of a case would “promote the just and efficient conduct of such actions.”²⁶² As such, the proposed solution would create an immunity from MDL transfer orders. The JPML would no longer have the power to order the consolidation or coordination for pre-trial purposes of actions involving government litigants.

This type of immunity sets it apart from immunities in the past that are immunities from liability.²⁶³ Such immunities come and came in many forms.²⁶⁴ Some are well known: sovereign immunity, tribal sovereign immunity,²⁶⁵ foreign sovereign immunity,²⁶⁶ international organizations immunities,²⁶⁷ judicial immunity,²⁶⁸ arbitrator immunity,²⁶⁹ prosecutor immunity,²⁷⁰ and numerous criminal immunities (e.g., transactional immunity).²⁷¹ Some are less-well known: immunity for death certificate completion related to recording the sex of the descendent,²⁷² immunity for volunteers to nonprofits or government bodies in various circumstances,²⁷³ clerical immunity for entering or refusing to enter judgment by default,²⁷⁴ and immunities arising out of the handling of loaned property by museums.²⁷⁵ And some immunities are no longer popular, for example: interspousal tort immunity,²⁷⁶ interfamily immunity, and charitable immunity.²⁷⁷ All of these immunities, and many more, absolve defendants from liability.²⁷⁸ Courts disagree whether immunity voids liability once liability is established or whether “the essence of absolute immunity is its possessor’s entitlement not to have to answer for his conduct in a civil damages action.”²⁷⁹

In contrast to these substantive immunities of the past, I propose the creation of a new procedural immunity. This immunity would exempt a class of litigants from a procedural device. The MDL transfer statute already contains a comparable provision. Actions by the United States under antitrust laws are categorically exempt from MDL treatment.²⁸⁰ Elsewhere, procedure is also mindful of the special litigation needs of government litigants.²⁸¹ For example, the United States receives special protections for default judgment,²⁸² extended time-allowances in pleadings,²⁸³ and protections from offensive non-mutual issue preclusion.²⁸⁴ In short, it is consistent with past practice to incorporate blanket protections into procedural rules (including the MDL statute itself) that take into account the litigation position of government litigants.

B. Choices

There are many ways to implement an immunity provision, whether substantive or procedural in nature. This Section discusses some of these choices and recommends an immunity configuration consistent with the normative concerns and the empirical description outlined above. All of these choices have been incorporated into the statutory language proposed in Appendix A. Of course, somebody might agree with the need for some type of MDL immunity without agreeing with all of the choices made here. As such, this section presents a menu of regulatory levers to fine-tune MDL proceedings that relate to the concerns outlined above. On the whole, I advocate here for broad-blanket rules that would be easier to administer, would be more predictable, and would decrease the chance of doctrinal drift over time.

The first choice to make when designing an MDL procedural immunity is to determine the scope: who and what is covered by the immunity? The immunity could only cover clear sovereigns like the government of the United States and States.²⁸⁵ Or it could cover these sovereigns as well as their agencies, corporations, officers, and employees. Or it could go further still and include U.S. territories and sub-state government entities like counties and county-equivalents (e.g., parishes in Louisiana), municipalities, and sub-municipal entities (e.g., police departments). Of particular importance is the treatment of federally recognized tribes.

I propose that the MDL immunity cover all government litigants. This is a broad articulation that captures tremendous variation. Some may be skeptical as to whether a sub-municipal government unit should be treated with the same deference in MDL matters as a mighty federal government agency. Perhaps, some might argue that the difference between all of these government entities is too great to warrant equal MDL immunity.

Notice, however, that MDL immunity is a commitment to recognize differences between government units rather than to treat different government units equally. In MDL proceedings, all but a handful of cases are mere onlookers. They are equally onlookers no matter their governing responsibilities, exposure to harm, litigation resources, or initiative. MDL immunity would break up this uniform treatment and guarantee that all of these government units could litigate in their home forums in ways that are mindful of local needs and conditions.

The second choice to make is whether to focus on government litigants solely on the plaintiff side, the defendant side, or both.²⁸⁶ My proposal includes all government litigants. The normative concerns outlined above arose in litigation where the government units are plaintiffs, but many of the same arguments could also apply to where the government units are defendants. Notably, a common law legal system works best when decisions percolate up through the system from numerous starting points, each generating more discovery, arguments, and counter-arguments.²⁸⁷ Another reason to prefer an inclusive party-role definition is the possibility of counter claims. Assume for a moment that we created an MDL immunity that exempted government defendants from MDL treatment, but not government plaintiffs. Now, imagine one of these government plaintiffs files suit, the defendant asserts a mandatory counter-claim,²⁸⁸ and the case with both the claim and counter-claim is swept into an MDL. In such a situation, the JPML would have to leave the original claim in the MDL but separate the related counter-claim and remand it to local proceedings.²⁸⁹

A third choice in designing an MDL immunity concerns limiting the immunity by subject matter.²⁹⁰ For example, somebody might believe that some type of MDL immunity is warranted but only in specific types of lawsuits, for example, civil rights cases. Perhaps MDL immunity is warranted in public law disputes but should not apply to private law litigation. The current limitation on MDL treatment contained in section 1407(g) is such a mixture of party limitation (“United States”) and subject matter limitation (“antitrust laws”). I did not include such a subject-matter limitation in the proposal because I find it difficult to predict the shape of future lawsuits. Most people twenty-five years ago would not have been able to anticipate an opioid MDL with hundreds of local government plaintiffs in it. A narrow focus in MDL immunities would likely leave out subject matters that at some point in the future need to be shielded from generalized MDL treatment involving governments.

The last choice in crafting an MDL immunity asks us to consider how durable the immunity should be. Is MDL immunity, like many substantive immunities, waivable? If it is waivable, then what would constitute wavier? Must it be invoked? When and how? Can waiver occur only explicitly or also implicitly? Can it only be waived in litigation or can it be waived pre-suit? (e.g., by a contract provision related to a pharmaceutical company providing opioids to the county hospital). Similarly, is waiver never revocable or could there be situations where parties get a second bite at the immunity apple?

These questions, and many more, arise as soon as MDL immunity becomes anything other than automatic, self-executing, and non-waivable. Any of these features would introduce unpredictability, costly immunity satellite litigation, and the potential for sophisticated legal entities to take advantage of inexperienced parties (e.g., a small county without a permanent legal staff). Common law interpretations of “consent to MDL treatment” might also unduly shift over time in favor of repeat litigants.²⁹¹ To counter all of these dangers, the proposed MDL immunity is not waivable.

This might seem like a harsh and overly broad provision of the rule. However, keep in mind that section 1407 is not the sole transfer statute. Section 1404 provides another way to transfer cases with party consent.²⁹² Determined parties can thus still have their cases transferred for litigation elsewhere. Once there, such a case could be consolidated with other similarly situated cases.²⁹³ A 1404 transfer has different up and downsides from a 1407 transfer, but could accomplish some of the same efficiency benefits.²⁹⁴ As such, the existence of alternative transfer possibilities cushions the blow of the proposed strict MDL immunity provision.

C. Which Tool

MDL immunity, in some form, could be accomplished through four tools: the MDL statute, amendment of substantive law statutes, JPML doctrine, or changed practices by MDL judges. Modifying the MDL statute is the most difficult path. The statute has not been modified since its initial enactment in 1968.²⁹⁵ However, it is also the path that establishes the most predictability and certainty. Alternatively, Congress could modify substantive statutes to include provisions that prevent MDL transfers in those types of cases (e.g., securities).²⁹⁶

Modifying JPML doctrine could accomplish roughly the same outcome by reinterpreting the words “just and efficient conduct of such actions” to include an exception for government litigants. However, that would put a significant amount of weight on the vague term “just” and arguably go beyond the powers of the JPML.²⁹⁷ Also, the Panel has traditionally not produced lengthy opinions that vary greatly between cases.²⁹⁸ More commonly, JPML transfer orders tend toward the brief and formulaic.²⁹⁹ This makes them poor tools to accomplish a massive sea change in MDL practice. Furthermore, membership on the JPML is not static and changed membership may bring different views as to MDL immunity issues.³⁰⁰

Finally, the least difficult but also least predictable and reliable way to accomplish a type of MDL immunity would be through changed practices by MDL judges. Any party, the Panel, or the MDL judge can theoretically initiate a remand of transferred actions back to their original courts.³⁰¹ However, it is “typically [] the transferee judge” who initiates successful remands.³⁰² Normally, “the Panel is reluctant to order a remand absent the suggestion of the transferee judge.”³⁰³ The MDL judge, in short, could decide at any time that actions by government litigants should not, or no longer should, be part of the judge’s MDL and initiate remands of those actions back to their home jurisdictions.³⁰⁴ In the case of the opioid epidemic, the Panel provided for this possibility in its original transfer order.³⁰⁵ The Panel, as it typically does, expressed faith in the “sound judgment of the transferee judge.”³⁰⁶ While an MDL judge might thus be able to accomplish something like MDL immunity by stubbornly requesting remands of actions involving government litigants, this tool of reform is unlikely and unstable.³⁰⁷ MDL judges are selected by the JPML in significant part because of their ability and willingness not to remand cases.³⁰⁸ That is how the judge in the opioid MDL perceives his selection and mandate.³⁰⁹ Judges selected, in part, on this trait are unlikely to then turn around and request remands for hundreds of cases with government litigants. Even if some MDL judges did, others might not. The remand requests of one MDL judge have no binding force on other and future MDL judges. This renders MDL immunity based on the practices of MDL judge unpredictable and unreliable. Modification of section 1407 is the most difficult, but also the most lasting and stable tool to accomplish a meaningful grant of MDL immunity to government litigants.

D. Concerns, Problems, Objections

MDL immunity, in whatever form and accomplished through whatever tool, is not without flaws. This Section will highlight the two most glaring issues.

First, MDL immunity might take many cases out of MDLs, where they would have been dealt with efficiently, and create a large number of duplicative litigation around the country, plowing the same ground over and over. Some might argue that this is a waste of sparse judicial resources and will overtax all parties and witnesses involved.³¹⁰

MDL treatment of properly related cases does make litigation more efficient and can dramatically cut back on duplicative discovery requests (e.g., multiple depositions of a pharmaceutical executive) and pre-trial motions (e.g., multiple protective orders related to depositions of a pharmaceutical executive).³¹¹ Beyond waste, there is also the danger of inconsistent rulings (e.g., one court granting the deposition and another court denying it). These are concerns in any complex litigation, but were particularly on the mind of the JPML when it created the opioid MDL.³¹²

Nothing in this Article should suggest that there are not important litigation efficiencies to be gained by MDL treatment. However, there are also important countervailing considerations that sometimes get shortchanged. The normative concerns that the opioid epidemic litigation highlights are a good opportunity to ponder what these countervailing considerations might be and how they stack up against efficiency goals. In the end, that necessarily entails a judgment call between two important sets of competing and inconsistent aims. Reasonable minds will disagree, but there can be no meaningful choice if one side of the equation is left out of consideration. In my mind, the instrumental and quasi-sovereignty arguments for exempting government litigants are even more important in some contexts than the important efficiency arguments.

The second major unaddressed objection to giving MDL immunity to government litigants is that this would raise federalism concerns. Many laws contribute to a complex fabric of shared, distributed, and delegated governing responsibilities and powers between and among different layers of government. Procedural laws are part of that delicate balance. Some might argue that a grant of MDL immunity would upset that balance.

There are numerous responses to this complex topic. Federalism is, of course, not static but instead is constantly renegotiated in the face of new challenges and demands.³¹³ Insofar as the opioid epidemic presents such a challenge, perhaps a careful re-calibration of federalism concerns in the complex litigation context are warranted. Relatedly, perhaps MDL immunity would not upset a federalism balance but rather restore it. It is not clear that the MDL statute was designed with cases like the opioid litigation in mind.³¹⁴ Conceptualized as a deviation rather than continuation, federalism concerns in the context of the opioid epidemic litigation call for a return to localized government litigation. Finally, whatever federalism concerns exist should not be overvalued. The MDL statute is not jurisdictional in nature. It does not modify the reach of federal courts either by granting or stripping powers. Instead, section 1407 is a transfer statute. As such, it only has the power to move cases from one federal district court to another if there is federal subject matter jurisdiction.³¹⁵ The MDL statute does not and cannot create such jurisdiction.³¹⁶ MDL immunity, as such, would only speak to cases that invoke federal jurisdiction while leaving state court proceedings untouched. MDL immunity could not reallocate power from federal to state courts because MDL transfers do not have that power either.

Conclusion

This is not the first time that the MDL system has faced a massive public health crisis³¹⁷ and not the last time that courts will encounter similar issues. As local governments take on a more active litigation role, they might find themselves more frequently in federal MDL proceedings. These situations will raise a bag of thorny legal issues³¹⁸ and require a full toolset of potential solutions³¹⁹ and perspectives.³²⁰ MDL immunity could be a device to guarantee, in the opioid litigation and litigation on the horizon, that efficiency concerns are properly balanced against other social and governmental interests.

Appendix A—Model 1407(a)

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. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be 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 unless it shall have been previously terminated: Provided, however, that the panel may separate any claim, cross-claim, counter-claim, or third-party claim and remand any of such claims before the remainder of the action is remanded. The panel may not transfer civil actions by or against government litigants.

Appendix B—Greyscale Version of Figure 4

The following Panels show County Governments in MDL #2804 by filing Window (the original Figure 4 combined all these panels and coded filing windows with colors).

Panel 1 (before initial 1407 motion):

Panel 2 (between initial 1407 motion and MDL order):

Panel 3 (first 6 months):

Panel 4 (7-12 months):

Panel 5 (beyond 12 months):

Appendix C—Greyscale Version of Figure 5

MDL Immunity: Lessons from the National Prescription Opiate Litigation

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