Goldberg: New Rule Calling for Early Vetting of Claims Needed
Recent rulings in an herbicide multidistrict litigation (MDL) have spotlighted the urgent need to address the widespread filing of unsupported claims, according to Shook Public Policy Group Co-Chair Phil Goldberg. In a commentary article for Law.com, Goldberg discussed a proposed rule of civil procedure being considered by the Federal Rules Advisory Committee that would require lawyers to vet each claim transferred into an MDL.
In the article, titled “MDL Judge’s Orders Should Spur New Rule Calling for the Early Vetting of Claims,” Goldberg pointed to an MDL in the Southern District of Illinois, where 5,000 claims have been filed alleging the herbicide Paraquat caused plaintiffs’ Parkinson’s disease. The judge overseeing the MDL has ordered all plaintiffs to provide evidence to support their exposure allegations after earlier selecting certain cases to go to trial and finding the claimants had neither showed they used Paraquat nor had Parkinson’s disease.
Goldberg said plaintiffs’ lawyers often file claims without speaking to claimants or reviewing records that the claimants have been injured or used the product. He said the federal courts are not up to the task of weeding out these claims, noting that once a claim is transferred into an MDL it may never have to be substantiated until it is picked for trial.
“Yet, the quantity of claims is leveraged to create a misimpression that there is merit to the litigation and the liability exposure is high,” he said. “The plaintiffs lawyers then pressure the courts and defendants toward settlement, hoping to reach a payday without having to validate the individual cases.”
The committee met April 9, after Goldberg’s article was published, and, according to Reuters, it unanimously approved a rule that encourages parties to exchange information about the factual bases for their claims early in the litigation. The rule next goes to the Judicial Conference’s Committee on Rules of Practice and Procedure for further approval.
