An increasing focus and growing consensus on the need for Multi-District Litigation (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:
1.) Initial Census is the New Kid on the Block
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. The initial census is designed to capture information regarding exposure and alleged injuries at an early stage to facilitate elevated case management and early vetting.
2.) Initial Census is Not a Plaintiff Fact Sheet
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. An initial census is adopted far earlier in the MDL process than a plaintiff fact sheet (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.
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.
Currently, 3 MDLs have adopted the use of an initial census process to serve as an early vetting tool:
- 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)
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 on how to manage an MDL going forward. 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.