WASHINGTON (May 12, 2021)—The COVID-19 pandemic showcased policymakers’ reliance on experts to help shape important public policies. Yet, this commonsense reliance on expertise found in other areas of society often stops at the courthouse door. In cases concerning difficult science questions, judges are frequently forced to substitute their black robes for white lab coats and weigh conflicting scientific evidence, often with little outside assistance to help them.

This challenge is most evident in multidistrict litigation (MDL), where large numbers of cases that appear to have similar factual questions are consolidated and collectively sent to one court to resolve pretrial motions and discovery.

In a new policy study, R Street resident fellow of governance Anthony Marcum discusses the MDL system and what can be done to get clear science through the courtroom door. Devised by Congress over 50 years ago, the MDL system has since considered over 600,000 cases and millions of claims. Today, it serves as a significant cornerstone of federal litigation, encompassing roughly half of all federal civil cases. Yet, unlike other civil litigation areas, judges are given extraordinary discretion on how cases proceed and how dubious scientific claims advance to trial.

“At times, legal generalists are seemingly forced to play amateur scientist in making science determinations” states Marcum.  “This dilemma is multiplied in MDLs, where one decision has the potential to apply to thousands of cases at one time—and to untold settlement figures.”

Marcum finds that the most common problems are premature judicial encouragements to settle and a lack of universal rules for MDL cases, resulting in unnecessary delays and inconsistent pretrial decisions that are often made without independent scientific analysis. Worse still, there is little opportunity to appeal these decisions until much later in the litigation, often draining litigant resources and forcing settlements that are based on a poor scientific foundation.

Both the federal judiciary and Congress should seriously consider the value of amending the Federal Rules to allow interlocutory appeals of certain pretrial MDL orders. In addition, judges should more readily consider independent technical advisors to help them consider difficult science questions. Doing so would assist judges in their gatekeeping role and help ensure retained experts reach good-faith conclusions.