What makes MDL hearings so interesting is that the motions often concern issues or products to which many of us can relate, including household items. The upcoming September hearing is no exception. At that hearing, the Panel will consider whether to create an MDL proceeding arising from allegedly defective clothes dryers. In re Electrolux Dryer Prods. Liab. Litig. (MDL No. 2477). According to the complaints in those cases, the dryers were responsible for home fires as a result of lint which accumulated near the heat source of those dryers.

What makes the MDL motion even more intriguing is that the petition does not merely consider actions commenced by purchasers of the product, the types of products liability actions often centralized in an MDL proceeding. Rather, many of the actions were filed by insurers against the manufacturers who paid out claims on home fires allegedly caused by the dryers. Indeed, an insurer (American Family) filed the petition before the Panel seeking to create an MDL proceeding. Thus, the Panel is confronted with the somewhat unusual issue of whether actions filed by insurers are appropriately centralized with the primary actions filed by consumers of the product at issue.

"What makes the MDL motion even more intriguing is that the petition does not merely consider actions commenced by purchasers of the product, the types of products liability actions often centralized in an MDL proceeding."

To add further intrigue to this motion is one of the bases for the manufacturer’s opposition to creation of the MDL. In a section of its opposition brief entitled "A Word About American Family" (which has a familiar ring to it), the manufacturer contends that the proponent of the MDL, insurer American Family, is the "wrong party to be making it." Specifically, the manufacturer argues, American Family: (1) is a party to only three actions, and discovery is already being shared; (2) twice failed to convince a district court to allow certain claims (arising from out-of -state fires) and is now seeking an MDL to circumvent those rulings; and (3) is in cases progressing to trial and it is thus "too late for this motion."

The ruling in these cases may well be of interest to:

  • Insurers who could find themselves (willingly or unwillingly) tumbling into future MDL proceedings
  • Parties in multi-action complex litigations who fail to obtain the relief they seek in individual actions and subsequently seek to create an MDL when the cases are closer to trial.

Although the scorching summer heat may have dissipated, what is the Panel’s thinking as to whether cases arising from overheating dryers warrant MDL treatment? Is a delay in seeking MDL centralization an insurmountable wrinkle to creating an MDL? How will the Panel rule in other cases? And what new issues will make their way to the Panel at the next hearing session? Stay tuned for our December edition of "And Now a Word from the Panel...," as parties look to "roll the dice" on MDL motions in Las Vegas, Nevada at the December 5 hearing (yes, December not November, a slight deviation from the Panel’s bimonthly schedule, presumably due to Thanksgiving).

This article originally appeared in Law360 on September 24, 2013.