When faced with defending multiple actions filed in various district courts regarding the same or similar products or subject matter, consolidating these actions into a single multidistrict litigation (“MDL”) can be a highly effective way to promote efficiency and streamline the discovery process. Forming an MDL allows corporate defendants who would otherwise be forced to defend these litigations in individual cases around the country to handle all pretrial discovery before one federal court. This can ensure consistency in pretrial rulings across cases and conserve the resources of all involved.
MDLs can be used as a method to conduct bellwether trials to determine the value of the claims made by plaintiffs, which is especially useful when considering a global resolution. If a bellwether trial is the ultimate goal of your MDL, the first step in selecting a representative case is conducting a census of the entire litigation. In order to understand the cases that comprise your MDL, you need a thorough discovery plan in place from the very conception of the MDL.
Developing a discovery plan requires determining the information you need from plaintiffs in order to make informed decisions down the line, and deciding what information you are willing to divulge. Establishing a process to synthesize this information is key to managing your case inventory, especially if the litigation involves a significant number of plaintiffs. A well-managed inventory allows you to establish a system for disposing of inappropriately filed cases expeditiously.
Initial Case Management Orders
MDL courts recognize that traditional discovery methods can be burdensome and time consuming for all parties. Instead, a standardized, shortened form of written discovery commonly replaces individually crafted interrogatories to save time and costs. For plaintiffs, this usually takes the form of a profile form or fact sheet. A profile form requests basic medical information whereas a fact sheet requests more detailed information on the plaintiff’s social and medical history. It is important to consider which is preferable, or whether there is a place for both in your litigation. Depending on the size of the litigation, a case management order (“CMO”) might require plaintiffs to submit a profile form within 30 days of filing the complaint, leaving more detailed fact sheets to be provided only by those plaintiffs who become part of a smaller discovery pool.
Determining the information you need from plaintiffs is crucial before negotiating the format of the discovery. General information about the plaintiff will always be important. In pharmaceutical cases, the requested information should include: how long plaintiff took the drug; dosage amounts; prescriber(s); and alleged damages. In medical device cases, the requested information should include: the device(s) at issue; implanting physician(s); any other devices that were also implanted; any related surgeries after implantation; and alleged damages. You will also want documented proof that they took the drug or were implanted with the device, which can be accomplished through medical records. Specific questions should also be crafted to elicit information relating to possible alternate causes of plaintiffs’ alleged injuries. Outside counsel should consider working with medical experts and in-house employees to determine key questions. Other information about the plaintiff will also be important. For example, knowing whether a plaintiff has filed for bankruptcy can be important for disposing of certain cases (as will be discussed below).
In addition to the profile form or fact sheet, note that for cases where a plaintiff’s health is at issue, authorizations will be required to collect medical records. The CMO should require plaintiffs to sign general medical authorizations that can be used for multiple providers, in addition to requiring plaintiffs to sign the authorizations without dating them so records can be requested at a subsequent time without needing new authorizations. You will also want to consider requiring plaintiffs to provide authorizations for employment, Medicare, Medicaid, Social Security, psychiatric care, insurance and Workers’ Compensation records.
For defendants, initial written discovery can be in the form of a fact sheet as well. You need to determine what you can and are willing to provide on a fact sheet before negotiating with plaintiffs, and for which plaintiffs you will provide this information. If proceeding with bellwether trials, it may be possible to only provide certain detailed information, such as the company’s relationship to a plaintiff’s prescribing physician, for those bellwether cases rather than providing it in every case filed. This does not absolve you of your obligations to respond to general document requests or to provide company witnesses for deposition. Rather, it eases the burden of providing information for every plaintiff, especially for a significant number of claims.
Besides the content, it is important to make sure the MDL court gives adequate discovery deadlines when the CMO is signed. Key things to include are:
The time plaintiffs have to submit the profile form or fact sheet after filing a complaint, and the effect of failing to provide the required discovery.
The time defendants have to submit fact sheets, and for which cases they will be submitted.
The time the parties have to review the forms for any deficiencies. Depending on the number of plaintiffs, we believe 30 days is a reasonable amount of time to respond.
The time required to respond to a deficiency letter.
The cutoff date for submission of plaintiffs’ forms for bellwether analysis.
Managing Your Inventory
Well-crafted discovery must be combined with a searchable database which houses all plaintiff-specific information to allow you to better manage your case inventory. Such an inventory database is priceless when analyzing potential bellwether cases and negotiating large settlements. If a global resolution of hundreds of cases is the ultimate goal, an artificially swollen inventory of meritless cases will inhibit you from understanding the true value of the litigation. Therefore, having a system in place to dispose of inappropriately filed cases is critical. Likewise, having a well-organized database with the ability to search across all cases allows you to identify duplicative filings so they can be brought to the attention of the court in a motion to dismiss.
Tracking incoming cases, and key factors related to each, allows you to identify those cases in which plaintiffs fail to adequately identify your company’s product, or identify the product of a different manufacturer. Once these cases are identified, they can either be dismissed or transferred from your MDL. When faced with possible statute of limitations deadlines, some plaintiffs’ counsel choose to file complaints identifying no individual manufacturer defendant, or, conversely, every potential manufacturer defendant. This practice artificially inflates the case inventory and places unnecessary burdens on defendants. But fortunately, judges do recognize such behavior as potentially implicating Rule 11 of the Federal Rules of Civil Procedure. Being able to swiftly identify cases with these issues allows you to bring them before the presiding judge and purge them from your inventory.
When designing what factors you need to be searchable across your inventory, statute of limitations issues must be considered. In product liability cases, the statute of limitations often begins to run at the onset of the injury, or when the injury could have reasonably been discovered. Is the date of injury easily identifiable in your case? If so, your database must allow you to easily compare the date of injury against the date of filing in order to identify those cases with a possible statute of limitations issue. Are there other dates besides the date of injury which could implicate the statute of limitations in your case--for example, a study released by a federal agency that might put plaintiffs on notice of a potential claim? If so, you must consider how to include that information in your database.
Additionally, a plaintiff’s bankruptcy filing can also play an important role in litigation. If a plaintiff filed for bankruptcy after their claim became ripe, but failed to disclose their litigation as an asset, this could be grounds for dismissing the case on grounds of judicial estoppel.
As you can see, MDLs can be complicated. Ultimately, you may be well advised to work with experienced outside counsel to develop a litigation plan that incorporates these various elements, while considering the long terms goals of your litigation.
Jennifer Eppensteiner is an associate in Reed Smith’s life sciences health industry group. She practices in the area of product liability litigation, and has experience defending pharmaceutical and medical device manufacturers in mass tort litigation involving products such as contraceptives and vaginal mesh. She also works on single plaintiff matters as well as coordinated cases and multidistrict litigation. She can be reached at jeppensteiner@reedsmith.com.
Regina Nelson is also an associate in the life sciences health industry group at Reed Smith who practices in the area of product liability litigation. She has experience defending medical device manufacturers involving vaginal mesh. She has also worked on other litigation, including a wrongful termination case and breach of fiduciary duty matter. She can be reached at rnelson@reedsmith.com.
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