Earlier this year, the plaintiff's attorneys applied to the MDL panel for consolidation of all COVID-19 interruption cases in federal courts throughout the country. On 12 August, the panel rejected the plaintiff's request for a single consolidation but requested information on the possibility of mini-MDLS in relation to five of the insurers which accounted for about a third of these cases: Lloyds (26 measures), Cincinnati (70 measures), Hartford ( 130 measures), Society Insurance (24 measures) and travelers (45 measures). On Thursday, September 24, the panel held a nearly three-hour hearing.
Most of the plaintiffs' lawyers argued that the policy language and state law were in fact the same in any case, that their clients were facing a crisis, that they needed to deal with a proposal to dismiss the process around the country with insurers essentially having the same identity proposal was ineffective and would lead to conflicting decisions, that common discovery questions and expert costs would be significant, and that the delay would be significant. While most were tailored to the need for coordination, they each had their own thoughts on appropriate courts for an MDL, often proposing specific judges. They argued that their cases were already moving faster, that the objectives were still focused on state law and that consolidation, which would require consideration of various claims, policies and state laws, would significantly delay the process. That said, as a reserve, should there be a consolidation, they requested that it be in the court where their own individual cases are currently pending.
The insurance agent argued that cases should be tried locally in courts chosen by the plaintiff. lawyers, that these courts were familiar with the law of the operating state which governed, that different civil authority decisions were issued in each jurisdiction (if at all), that many of the forms of insurance were different and that each plaintiff's claims and damages had to be evaluated separately.
Some judges seemed skeptical of the request for consolidation and stated, for example, that they never used MDL for purely legal issues as this seemed to be, that many cases (in fact two thirds) were still in the state court system, that the policy differed that the damages also differed, and that the issues would have to be decided by state courts anyway.
Other judges asked questions that suggest they may have seen the math. It is different and voluntarily perceives that all politics and state law were largely the same and asked those who opposed consolidation why consolidation would not be the most effective way. As commented, since each of the insurers submitted essentially the same proposals to reject in each of their cases, it made sense to treat them all at the same time.
The panel tends to issue decisions quickly and a decision can reasonably be expected in October.