Earlier this month, a U.S. judicial panel approved a new rule that would govern the initial stages of federal mass tort cases. Rule 16.1 of the Federal Rules of Civil Procedure is the first of its kind.

If enacted, it would provide judges with guidance on how to navigate the beginning phase of multidistrict litigation (MDL) case management.

That guidance would recommend:

• Parties confer in the early stages of an MDL to discuss the factual and legal grounds of the case.
• The court determine which information will be required for exchange about the factual bases for claims and defenses.

While such practices are common in MDLs, the rule aims to create standardization. Congress established the Judicial Panel on Multidistrict Litigation (JPML), and thus oversight of MDLs, in the late 1960s with the goal of promoting just and efficient conduct in complex litigation. However, the average number of actions per MDL has grown drastically. According to Lawyers for Civil Justice, more than 70% of the federal civil caseload reside in MDLs. 

Rule 16.1 has been in consideration since 2017. Proponents suggest that the rule will help identify claims that lack factual merits early in litigation. In February 2024, Lawyers for Civil Justice provided empirical evidence to the Advisory Committee on Civil Rules. In an example cited, 53% of the total 46,511 cases filed in Ethicon, Inc., Pelvic Repair System Products Liability Litigation were dismissed for lacking factual evidence or inability to establish injury. 

Complex litigation involves many challenges from the onset. Allowing claims to persist when they lack evidence makes MDLs difficult to manage and increases the cost of litigation. While rule 16.1 should help identify these types of cases early in the litigation, defendants and their counsel will need to ensure they have the technical solutions to intake and triage cases as soon as information becomes available. KCIC has previously blogged about triaging reports and other solutions we provide to assist in the early stages of litigation.

The rule still faces several layers of judicial and legislative review before taking effect. First, it needs to be considered by the Judicial Conference (likely in September). If successful, it would go to the U.S. Supreme Court for approval, then to Congress. If Congress takes no action to modify or reject the rule, it is likely to take effect on December 1, 2025. We will continue to monitor the rule’s progress and share updates.