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.