With mass torts, plaintiffs and their attorneys have both state and federal options when considering where to pursue their claims. The conventional wisdom has been that federal courts are “defense friendly” – with substantive and procedural requirements and rules which may be unfamiliar or appear restrictive to attorneys who practice primarily in state courts.
The number of mass tort cases continue to grow, and several states created robust “multi-county litigation” (MCL) or complex coordinated litigation courts, to streamline heavy mass tort case loads. However, recent decisions by New Jersey and Pennsylvania MCL judges have indicated that out-of-state plaintiffs suing nonresident defendants may face difficulty in demonstrating a relationship to the forum sufficient to support exercise of jurisdiction.
In many cases where plaintiffs decided to pursue their claims by filing in non-MCL state courts, defendants filed notices of removal, pulling these cases out of state courts, at least until the issue of removal was decided. The enactment of the Class Action Fairness Act (“CAFA”) provided another basis for removal in mass actions and class actions.
At the same time, mass tort litigation centralized into federal MDLs dramatically increased. Federal courts with MDL cases have dealt with burgeoning litigation with increasing sophistication, and the accessibility of the CM/ECF and PACER systems have allowed parties easy, almost instantaneous access to information. Federal court judges presiding over MDLs have encouraged coordination with state courts, issued thoughtful opinions on intricate choice of law issues, conducted bellwether trials to establish potential case value, and have demonstrated a commitment to improving the ways that such litigation is handled.
State court plaintiffs face removal. Fighting removal may require a substantial expenditure of resources. In fact, litigating any products liability case requires an incredible investment of time and resources. Before deciding where to appropriately file a civil action, plaintiffs and their attorneys should carefully consider the potential benefits of filing in federal court — particularly in the mass tort context. They should consider the value of coordinating with other plaintiffs’ counsel, or possibly sharing the costs of litigation with other plaintiffs. They should consider whether pursuing their claims in a federal MDL would better meet the needs of the individual plaintiff. Federal court MDL practice is reality in the current mass tort environment. All attorneys, including potential plaintiffs’ attorneys must embrace this reality.