When a disaster of nationwide importance is dropped into the lap of a single federal judge as a multidistrict litigation (MDL), we expect a lot. The judge is supposed to efficiently manage the litigation as a massive aggregate, perhaps toward a workable resolution, while also still treating the cases transferred to the MDL as individual entities, respecting the rights and interests of the parties on both sides of the v. Doing so is a constant balancing act. Typically, and appropriately in our view, the MDL judge should be the one striking that balance day to day-with very limited interference. Indeed, that is how the MDL regime was designed. But increasingly it appears that defense-side interests would like more appellate review, largely in order to police supposedly lawless MDL judges. A prime example of this was the Sixth Circuit's recent writ of mandamus against Judge Dan Polster in the gargantuan opioids MDL for, of all things, allowing plaintiffs to amend their complaint after a deadline in a case management order. In this Essay, we argue that this decision was wrong-both narrowly, as a matter of law, and broadly, as a matter of judicial policy. What's worse, the Sixth Circuit's opinion-and its implication that MDL judges ignore the Federal Rules of Civil Procedure-has gone viral, finding its way into briefs, opinions, and political materials intended to hamper judicial discretion in MDL. Here, we intend to counter this dangerous precedent-and narrative.
Andrew Bradt & Calen Bennett,
Adult Supervision? Appellate Review, Mandamus, and the Federal Rules in Multidistrict Litigation,
50 Fla. St. U. L. Rev.