The use of data analytics in Multi-District Litigations (MDLs) is a largely untapped, yet powerful tool in the management of product liability MDLs. In no uncertain terms, data analytics can help parties and judges make better decisions in how MDLs are managed going forward. With the recent push to adopt the use of an initial census process, parties and judges are gaining visibility into potential claims, claimant demographics, and injury types at a speed not typical of traditional MDLs. As judges in at least three recent prominent MDLs have ordered lawyers to prescreen some of the lawsuits through an initial census, parties and judges are leveraging the collected information—including the data and analytics from these forms—to more efficiently manage MDLs from discovery through resolution.
An increasing focus and growing consensus on the need for MDL best practices and rule reforms to the Federal Rules of Civil Procedure (FRCP) was a hot topic discussed during the ACI Drug and Medical Device Litigation Conference held virtually earlier this week.
One panel in particular spoke about the use of early vetting tools and data analytics in the management of MDLs. Panelists Christopher Guth, Senior Assistant General Counsel from Bayer, Gabriel Egli, Partner from Shook Hardy & Bacon, and Megan Pizor, General Counsel from Litigation Management, Inc. shared 3 important takeaways summarizing initial census a new tool for early vetting, the difference between initial census and a plaintiff fact sheet, and how to use the data collected during this proposed phase of early vetting.
1. Initial Census is a New Tool for Early Vetting
With more than half the federal civil docket now comprised of MDLs, and product liability cases making up 90% of all MDL cases, determining whether plaintiffs and claimants have an alleged injury or have been exposed to the product at issue has never been more paramount this early in the MDL process. According to a letter dated March 19, 2020, the Lawyers for Civil Justice (LCJ), a nonprofit national coalition of defense trial lawyers, lawyers’ organizations, law firms and corporations, commented that “some FRCP are failing to provide practical presumptive procedures in MDL cases, so judges and parties are improvising.” Arguing that the FRCP were not designed for MDLs, the LCJ is pushing for amended rules to provide the same clarity, uniformity, and predictability that the rules provide for all other civil cases.
As part of the push to change the way in which MDLs are managed, parties and judges have adopted the use of an initial census in 3 recent MDLs:
3M Combat Arms Earplug Prods. Liab. Litig. (MDL 2885) 
- N.D. Fla. | Hon. Judge M. Casey Rodgers | MDL Transfer: Apr. 3, 2019
- PTO 18: Order Governing Initial Census Requirements (Oct. 22, 2019) 
Juul Labs, Inc. Marketing, Sales Practices & Prods. Liab. Litig. (MDL 2913) 
- N.D. Cal. | Hon. William Orrick | MDL Transfer: Oct. 2, 2019
- CMO 2: Initial Case Census (Nov. 19, 2019) 
Zantac (Ranitidine) Prods. Liab. Litig. (MDL 2924) 
- S.D. Fla. | Hon. Robin Rosenberg | MDL Transfer: Feb. 6, 2020
- PTO 15: Order on Procedures for Implementing Census (Apr. 2, 2020) 
Designed to capture information regarding exposure and alleged injuries at an early stage of an MDL, the data gathered during an initial census helps inform case management orders and early vetting, and provides the parties and judges with the ability to learn, at a preliminary stage, the key factual, scientific, and legal issues involved.
2. Initial Census is Not a Plaintiff Fact Sheet
Plaintiff fact sheets (PFS) have traditionally been used in MDLs to collect information about individual plaintiffs. As noted by a LCJ Comment submitted on September 9, 2020 to the Advisory Committee on Civil Rules and its MDL Subcommittee, PFSs are not used early enough, acknowledging "the average time from Panel centralization to entry of a PFS order in the proceeding it studied was over 8 months." 
In contrast, an initial census is adopted far earlier in the MDL process than a PFS to assist with the early vetting of claims, selecting the Plaintiffs’ Leadership Committee, gauging the scope of litigation, informing case management decisions, narrowing claims and defendants, and grouping cases into discovery, trial, or mediation pools. Common features of an initial census contain information such as biographical information, counsel information, proof of use and proof of injury, and minimal document production requirements and related certifications. Discovery analytics platforms capturing data from an initial census can generate critical analytics from discovery questionnaire responses, providing visibility into the plaintiff inventory – including jurisdictions, allegations, and other trends such as claim verification, initial case assessments, case and claim trends, number and types of injuries alleged, and product and exposure verification.
3. There is Promise in How the Data Can Be Used
Early dismissal of cases that would traditionally languish in an MDL holds promise as data analytics inform parties of litigation scope earlier in the process. Early planning and engagement with experienced companies who can develop a discovery analytics platform to support an initial census are key to collecting usable data that drives decision-making as the litigation evolves. With parties having access to more data earlier in the MDL process, enhancements to phased discovery and trial pool selections may help parties develop an earlier framework by which resolution discussions may occur.
Capturing data and generating analytics from discovery questionnaire responses provides the needed visibility for lawyers and judges to make data-driven decisions and build strategies to more efficiently manage MDLs going forward. Given the 3 pending pilot cases, we must wait to see whether the initial census process and resulting data analytics bring more efficiencies to the management of MDLs. Being able to capture plaintiff and claimant data at such an early point provides parties on both sides of the bar a new tool with which to assess case strategy with a more fulsome picture in mind. Providing parties and judges with options very early in the litigation opens the door to solving a problem inherent with MDLs and the lack of formal rules to manage large-scale, multi-plaintiff litigation. From streamlining the process for determining initial trial picks to gaining a better understanding as to what motions to file could become predominantly clearer through the initial census process and the data analytics that result.
Whether the information gathered through an initial census process is obtained early enough to efficiently vet claims and to what extent the information helped drive earlier resolution of these cases remains to be seen. What the future holds largely depends on the experiences in pilot cases, and the willingness of parties and judges to leverage, enforce, and embrace this new way of MDL management.