Lauren E. Godshall

Volume 74, Issue 5, 1353-1372

Mass torts cases take up a massive swath of the nation’s federal court docket yet are governed by little to no substantive procedural laws. Instead, a host of regular practices for multidistrict litigation (“MDL”) management have emerged through repetition. One such practice is the selection of a plaintiff steering committee (“PSC”): a small group of experienced plaintiffs’ attorneys that control and direct the litigation from initiation through settlement or other resolution. The PSC is extremely important—determining which experts to use, which injuries to focus on, and so forth. Yet there are no set rules dictating PSC management of the litigation, unlike those that control class action counsel selection and court approval. There are no specific ethical duties owed by any PSC member to any individual plaintiff in the litigation other than to a PSC member’s own clients, if they have any. An average non-bellwether MDL plaintiff benefits from the PSC’s work and will probably pay in part for it but has no true fiduciary relationship with the PSC. The PSC manages the individual’s case, but there is no attorney-client relationship between them. The relationship seems contractual, but neither plaintiff nor PSC has entered into that specific contract, and neither can meaningfully terminate that contract. From the legal ethics perspective, is this sufficient? Should rules be developed, or should existing rules be applied to this kind of relationship? This Essay exposes and explores this ethical gap in MDL practice.