Rule 16.1: Rearranging Beach Towels on the MDL Titanic
- Elizabeth Chamblee Burch
- 2 days ago
- 8 min read
What the First Federal Rule for Multidistrict Litigation Misses About Justice
Today marks what should be a watershed moment in civil justice: after 56 years, multidistrict litigation finally has its own federal rule. But as I pore over Rule 16.1’s provisions—management conferences here, leadership appointments there—I can’t help but think of one federal judge’s perfect assessment: “It’s a nothing burger.”
She’s right. And that’s a tragedy for the millions of Americans caught in MDL’s legal factories (more about that in a minute).
The MDL Rule We Got vs. The Reform We Need
Let me be clear: any attention to MDLs is welcome. In 2023, if you grabbed a random civil litigant as they sued in federal civil court, you’d have a 1 in 4 chance of selecting a plaintiff in a product liability MDL. And if you’d plucked a plaintiff from the open civil docket, you’d have a more than 50-50 shot of nabbing a mass-tort plaintiff because those proceedings usually take longer to resolve. As the 3M military earplug cases settled, those numbers have declined, but in 2025, pending MDL cases still account for 39% of the federal civil docket.
All this means that a huge number of people who encounter the civil justice system do so through mass torts and their thoughts about our justice system are largely shaped by those experiences.
Product liability MDLs and mass torts more broadly aren’t abstract legal proceedings; they’re about real people seeking justice for real injuries.
MDL Rule 16.1 codifies what conscientious judges already do: hold initial management conferences, structure leadership counsel appointments, establish coordination protocols, and address consolidated pleadings. It’s procedural housekeeping—necessary, yes, but hardly transformative since judges do those things already.
Here’s what the new rule doesn’t do: address the profound human crisis at the heart of modern mass torts.
The View from the Ground
For two years, my co-author Margaret Williams and I conducted the first-ever procedural justice study of MDL plaintiffs. We spoke with 217 participants from 42 states—diverse in background, education, and race. Their cases originated in 32 different courts. Nearly 300 lawyers from 145 firms represented them.
In addition to demographic and geographic diversity, their responses varied substantially, all of which suggest respondents form a representative sample. But this study was (and remains) the first of its kind and no database of MDL plaintiffs exists for comparison purposes, so we can’t guarantee representativeness.
Even if our findings are just a snapshot, they should shake anyone who believes in justice:
Only 1.8% felt their lawsuit accomplished what they hoped.
Let that sink in. Out of 217 people who went through years of litigation, who suffered real injuries, who sought accountability—only four felt the system worked.
The numbers tell a story of systemic failure:
64% were dissatisfied with their attorneys
50% couldn’t trust their own lawyers
59% received few or no case updates
67% didn’t understand what was happening with their lawsuit
73% found delays unreasonable (MDLs averaged 4.7 years vs. 1 year for typical civil cases)
Only 1.3% ever attended a hearing
We heard comments like:
“My suit has been filed for 7 years. I am 15 years injured.”
Another said, “In the over 5 years that have transpired since we file[d] our lawsuit, we have NOT received a trial date. This litigation process is simply broken. The pain and suffering of the many lives trapped in this maw deserve justice and yet, we wait. Justice Delayed, Justice Denied.”
Yet here’s the heartbreaking paradox: 60% would have waited even longer—some up to five more years—just for the chance to tell their story.
The Criminal Conspiracy That Exposed the System
These aren’t just statistics. They’re people with stories to tell like those I chronicle in The Pain Brokers, which launches January 13, 2026. The book exposes a $40 million criminal conspiracy that weaponized the pelvic mesh litigation, turning women’s injuries into cash machines for call centers, rogue doctors, and corrupt lawyers.
Consider Jerri Plummer, who flew to a quickie surgery center in south Florida after a caller told her she had a “ticking time bomb” inside her. The general surgeon who removed her mesh—which never should have been removed—typically ran a “medispa.” She ripped out mesh from five women in a single day, procedures that can take 6-8 hours each when done properly.
Or Sharon Gore, who thought Boston Scientific phoned her to recall her mesh. Convinced she had something akin to cancer, she was tricked into signing medical loan documents via DocuSign while frightened and vulnerable.
Or Barb Shepard, whose quest for justice became a nightmare of exploitation.
These women weren’t just plaintiffs. They were cash machines. You can read their stories in the real-life legal thriller, The Pain Brokers.
What Procedural Justice Actually Requires
Decades of research tells us what people need from courts to feel fairly treated, win or lose:
Voice: The chance to tell their story
Participation: Meaningful involvement in their case
Transparency: Understanding what’s happening and why
Dignity: Being treated as individuals, not inventory
Accountability: Seeing wrongdoers face consequences
MDLs often deliver none of these. As one participant wrote: “I received no justice, no closure... My rights were taken from me and thrown back in my face by the very people who are supposed to uphold them.”
The Architecture of Exploitation
The current MDL system creates perverse incentives at every level:
Lead attorneys collect millions in common benefit fees while having no direct relationship with most plaintiffs. Repeat players are prevalent on both the plaintiff and defense side. In our past scholarship, Williams and I found that attorneys can bargain for what may matter to them most: defendants want to end lawsuits, and plaintiffs’ lawyers want to recover for their clients and receive high fee awards along the way.
By studying the settlements they designed over a 22-year span, we were unable to find any deal that didn’t feature at least one closure provision for defendants. We likewise found that nearly all settlements contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcome.
What does this mean for clients: As one-shotters in the system, they may not be well represented.
Individual attorneys stockpile thousands of clients they never meaningfully represent. One firm in our study represented over 10,000 pelvic-mesh clients. When settling, some attorneys threatened to drop clients who wouldn’t accept lowball offers. As one participant reported: “My attorney started calling me weekly, sometimes daily, threatening me that if I didn’t take the settlement offer I would be dropped... I was actually scared when my phone would ring.”
Settlement administrators (often private attorneys hired by plaintiffs’ lawyers) may allocate money based on incomplete information. Only 25% of participants thought administrators had accurate information about their injuries.
Defendants leverage volume to force inventory settlements, and settlements can be cheaper by the thousand.
Meanwhile, pelvic mesh plaintiffs received settlements averaging $40,000 before attorney fees and costs. One attorney charged a mesh client $575 for his steak dinner and $6,630 in interest. Those with medical loans often got nothing.
The Path Forward
Real reform requires fundamental changes that Rule 16.1 doesn’t even attempt:
Lawyer-Client Communication
Every attorney—lead or individual—must communicate regularly with their clients according to the Model Rules of Professional Conduct (Rule 1.4). Clients should receive actual updates about their specific case.
Transparency in Settlement Allocation
Public closing statements should reveal attorney fees and settlement amounts. Sunlight remains the best disinfectant, and transparency would drive down excessive fees while providing data to compare results across proceedings.
Meaningful Participation Opportunities
Technology now allows plaintiffs to watch hearings, observe depositions, and see their attorneys at work without crossing the country. During COVID, we learned remote participation is possible (even for kindergartners—sort of). Why abandon it now?
Enhanced Oversight of Leadership Counsel
MDL judges should consider adequate representation and conflicts of interest in selecting lead lawyers, as well as require plaintiff evaluations of leadership performance. Anonymous surveys could provide accountability where none currently exists.
Limits on Inventory Settlements
Defendants shouldn’t be able to condition settlement on participation thresholds that coerce individual choice. Each plaintiff deserves an individual day in court—or at least the credible threat of one.
Appointing Separate Counsel for Diverse Interests
Different injuries, different states, different circumstances require different representation. One-size-fits-all leadership structures fail to adequately represent heterogeneous MDL plaintiffs.
Technology as a Bridge to Justice
Courts could leverage existing technology to restore some humanity to MDLs:
Livestream hearings and bellwether trials so plaintiffs can watch similar cases unfold.
Create accessible MDL websites that actually appear in search results (try Googling “pelvic mesh litigation”—court websites are hard to find).
Establish secure portals for document access and case updates. Online forums could also allow plaintiffs to exchange information with one another and with lead lawyers without endangering attorney-client privilege.
Use video conferencing for plaintiff input on key decisions.
As Judge Jack Weinstein observed, these “democratization techniques using modern technology do not solve the fundamental problems of mass litigation. They do, however, begin to return the affected individuals to the center of massive litigation.”
The Bigger Picture
Rule 16.1 represents a missed opportunity to address what one participant called “our very broken judicial process.” While judges debate conference scheduling and leadership structure, millions of Americans—predominantly women, older Americans, and veterans—suffer in a system that treats them as commodities rather than humans seeking justice.
The rule talks about “facilitating resolution,” but resolution without justice is merely efficient injustice. It addresses “coordination” but ignores client communication. It structures “leadership” while leaving plaintiffs voiceless.
A Personal Note
As someone who has spent over 20 years writing about mass torts, I understand the challenges judges face. Managing 108,000 pelvic mesh cases with one district judge and one magistrate is Herculean. But difficulty doesn’t excuse abandonment of procedural justice principles that undergird our legal system’s legitimacy.
I’ve spent the last few years listening to women who felt betrayed not just by medical devices, but by the lawyers and courts meant to protect them. Their stories—of courage in the face of exploitation, of persistence despite systemic failures—deserve more than procedural housekeeping.
The Bottom Line
Rule 16.1 may organize the conference room, but it doesn’t address who is actually at the table. Until we center the voices of those seeking justice rather than those administering it, MDL reform will remain incomplete.
The federal judiciary had a chance to reshape mass litigation to serve the people it’s meant to protect. Instead, we got a rule that, as one judge aptly noted, amounts to “a nothing burger.”
The 98% of MDL plaintiffs we spoke with who feel failed by the system deserve more than management conferences and leadership protocols. They deserve justice. And Rule 16.1 doesn’t deliver it.
Elizabeth Chamblee Burch is the Fuller E. Callaway Chair of Law at the University of Georgia and author of “The Pain Brokers: How Con Men, Call Centers, and Rogue Doctors Fuel America’s Lawsuit Factory” (Simon & Schuster, January 13, 2026). She is a prolific author on mass tort lawsuits and a frequent commentator in national news media such as NPR, The New York Times, The Wall Street Journal, Forbes, USA TODAY, and the Los Angeles Times.
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