Just Like Us: MDL Is Eating Weedkiller

The ingestion of an herbicide called glyphosate is currently unavoidable in America. It is the main ingredient of a consumer product called Roundup. People who regularly used Roundup have brought civil lawsuits against its manufacturer, Monsanto (now owned by Bayer), claiming Roundup caused their cancer diagnoses. Juries, particularly those in state courts, have awarded some plaintiffs massive damages awards. But jury trials elude most of the glyphosate plaintiffs who find themselves in federal court. There, the same can be said for nearly all products liability litigants. This is due to the procedure that has slowly come to dominate mass torts over the past fifty years: Multidistrict Litigation (MDL). When many federal plaintiffs share similar claims, they are aggregated into an MDL overseen by a single federal district judge. The nuances between their claims are effectively dissolved. Their pretrial issues are decided en masse, and their cases are usually funneled into negotiated settlements. The thousands of plaintiffs in an MDL cannot choose the lawyers who negotiate these settlements, cannot appeal the decisions resulting from the MDL, and cannot opt out of the MDL once their suit is aggregated into one. This procedure is rationalized by both the efficacy it provides the courts and the leverage it gives plaintiffs by grouping them together. However, some scholars worry this procedure gives corporations like Bayer a bulk discount on damages and erodes hallmarks of litigant rights Americans have come to expect from their court system. This Note addresses how MDL procedure has affected the path of glyphosate litigation so far. It also explores why America’s regulatory regime has not effectively addressed glyphosate’s potential toxicity, leaving mass tort litigation as the main engine of progress on the issue. It explores theories of how mass tort litigation can affect regulation and juxtaposes those theories against the reality of MDL procedure. It parses out the differences between MDLs and Class Actions and describes how the former has come to dominate aggregated litigation. Furthermore, this Note describes concerted efforts to reform herbicide law to disallow plaintiffs from keeping their claims in state courts, as well as efforts to preempt and disallow federal claims of glyphosate litigants. Finally, it describes potential reforms to MDLs which could address scholars’ most damning critiques and evaluates the glyphosate MDL in light of the procedure’s worst-case scenarios.