Streamlining Mass Tort Cases: An Inside Look at Multidistrict Litigation

Angela:

Hi, and welcome to Litigate with Insight, the LMI podcast, a podcast about the intersection of data, analytics, technology, and innovation in the legal industry. In each episode, we bring together experts, thought leaders, and industry pioneers to explore how these cutting edge topics impact litigation. I'm your host, Angela Browning, Chief Strategy Officer at LMI. On today's episode, we dive into the complex world of mass tort litigation with General Counsel for LMI, Megan Peyser. On today's episode, we're going to discuss mass tort multi-district litigation, the discovery process, and the types of data sets that are most important for powerful reporting and insights with General Counsel and Chief Data Officer for LMI, Megan Peyser. Megan, thanks for joining us again today. It's good to be here. Thank you for having me. Let's dive right in. I used a big word there, multi-district litigation. Why don't you help the audience learn about what multi-district litigation is?

Megan:

Sure. So multi-district litigation is basically a federal legal procedure, which is designed to increase efficiencies and ultimately speed up the process of handling large or complex cases. And it can be anything from product liability to antitrust to security. So what is MDL? Well, the history of the MDL tool was first introduced in the 1960s with an antitrust scandal that involved electrical equipment and price fixing in the industry. There were thousands of civil litigations throughout over 30 plus federal jurisdictions, and I think over 25,000 claims in total. And the courts were grappling with how best to manage this outside of a traditional class action. So in 1962, a coordinating committee was appointed, and they put into place a number of essentially ad hoc procedures to better manage this large influx of cases outside the class action landscape. such as coordinating national depositions, doing a nationwide document repository, other things that could help to streamline the process across multiple jurisdictions. By about 1967, it was resolved with only a handful of cases actually going to trial. So a lot of lessons were learned throughout this process. But it wasn't alone. There were many other cases that were starting to draw national attention for being complicated and unable to be resolved through traditional class action resources throughout other cases and jurisdictions. So in 1968, through an act of Congress, the formation of something called the JPML, or the Judicial Panel on Multidistrict Litigation, was formed via Chapter 28 of the United States Code, specifically Section 1407. And the idea or concept behind this was to centralize when there are civil actions that are involving one or more common questions of fact in multiple different jurisdictions to help streamline. Initially, when this whole concept came about, We were talking about maybe dozens, sometimes hundreds of potential cases and or litigants. But in the 1980s and 90s, that's when we saw an absolute explosion. There were diet drugs, breast implants, asbestos, tobacco, really hiking these numbers of cases and claimants up into the thousands and potentially even hundreds of thousands. And this continues today.

Angela:

I think that's a really good segue into the next question. Let's dive into mass tort MDLs. What are mass tort MDLs, Megan?

Megan:

So a mass tort involves injury of some kind. It's a tort, large tort, that, you know, in the MDL context is approved for centralization in front of one court for purposes of discovery. And the injury is typically health-related, but it can also be economic injury. And in a mass tort MDL, each plaintiff has a unique set of circumstances that lead up to their alleged injury. It could be a unique health history, unique contributing risk factors, perhaps different levels of exposure to the product at issue, if it's a product liability lawsuit, and that could be, you know, different levels of exposure to a particular chemical. It can be a history of taking a particular pharmaceutical product for a year versus 10 years. But what's unique about mass tort MDLs is the need for not only a proof of injury, but also proof of use of the product at issue, specifically within the context of product liability litigation. There's about 177 MDLs pending as of the beginning of July of this year. And about 38% of those cases, 68 of the 177 are product liabilities. So that makes up the bulk of the 177 currently pending MDLs. There are, of course, other types, but products liability really takes up the bulk. And when I say 38%, I mean the actual cases, not necessarily the number of litigants. And I think, Angela, you might actually have a little more insight into the number of litigants that are product liability with respect to the federal docket.

Angela:

This is a staggering number, and I think when I see it, you know, it's hard to believe with the evolution of MDLs and what this is today. According to MDLCases.com, as of July 2nd this year, there are over 417,000 product liability litigants currently pending. That makes up 70 percent of total district court pending actions. And I know as our chief data officer and Excel spreadsheet lover, that's something that Megan can also think, wow, that is just a number that how did we get here? Yeah. How are we managing these things? And I think that that is a testament to how large and how much of a challenge it is to manage cases of this stature.

Megan:

I think one other thing I'd like to mention here is with respect to the types of mass torts, specifically product liability, we can get into some subcategories. The majority of those cases are generally pharmaceuticals and medical devices. That makes up about 57% of the product liability cases. But there are also other areas, automotive products such as when airbags are not working as intended, or consumer products such as hair care products, children's products, toys or formula, and then lastly toxic exposure such as weed killer and chemical spills. And I think Angela, you might be able to talk to this a little bit.

Angela:

One area we're seeing a lot of activity is in the forever chemical cases. From an MDL standpoint, we're seeing the firefighting foam MDL, the aqueous film forming foam MDL, which includes firefighter gear as well. This is related to a chemical called per- and polyfluorinated alkyl substances. Word salad with both of those, PFOS, is what it is largely known as today. What these chemicals are, they're part of a family of highly persistent synthetic chemicals. Think of it as a group of chemicals that have properties that allow them to repel water, dirt, or oil, things of that nature. And while they work really great, they stick around forever, hence the forever chemical cases. They're used in many consumer products from manufacturing nonstick cookware, textiles, cosmetics, electronics, you name it. So there's increased attention to potential linked harm to humans in the environment, and of course, leading to increased potential injury-related litigation. We're actually going to have a future episode dedicated solely to this topic, as there are a huge number of players involved in different issues and how you manage an MDL of this size. With that, I'm going to move into my next question for Megan is, what are challenges commonly faced with mass tort MDLs?

Megan:

Well, I think one of the largest complexities that can arise is just with respect to there being so many parties and, as a related note, so many law firms. The issues for plaintiff firms can be determining whether a plaintiff's case should even be filed. It can be expensive to conduct sufficient discovery, but for plaintiff law firms, they need some level of merit prior to contemplation of filing of the lawsuit in the first place. So weeding through which cases to file and not file on that scale with so many potential plaintiffs can be really challenging. From a defendant perspective, there can also be some issues with determining potential liability with multiple defendants. If it's a product manufacturing case and there are multiple potential defendants, who manufactured what and at what time in order to determine who might be liable for the general population allegations and for specific buckets of plaintiffs? So that's kind of a key issue. Another issue can be coordination between federal and state courts. And Angela, I think if memory serves, you have some commentary on this front.

Angela:

That's right. I think when you're thinking about state and federal courts and the different rules, there are different legal standards, different case management preferences, which you run the risk if you are not coordinating a state and federal level duplicating efforts and discovery and pretrial proceedings that can cost a lot of time and a lot of money. coordinating the management of the MDL and the state court actions, coordinating settlements involving plaintiffs in both federal and state jurisdictions, that can cause a whole host of complex issues. And it's something to be noted here and something I hear constantly in conferences about the challenges of coordination among the state and federal players. There are a lot of layers to be considered here, and that is definitely one that could take its own episode, but we won't touch on that here today. Megan, do you have any other commonly faced challenges with mass tort MDLs that you like to cover?

Megan:

I think there are two more that are worth noting. One is there is a lot of data to get through associated with the discovery process with this size of a litigation. But I think we're going to talk a little more about that in a few minutes. So the last one that I'll denote, for purposes of today is just the potential duration. It's a lot of parties, a lot of plaintiffs, a lot of defendants, a lot of law firms. That's a lot to coordinate. So it can take some time to get to resolution. In terms of from start to finish, that time to resolution, everyone's motivated to make that happen quickly, and that's not always possible on cases of this scale.

Angela:

That's right. If you're thinking about a case of this size, cases of this size, focusing on the case logistics, how an MDL will be managed, the negotiation of orders to even get those rules established between plaintiff and defense takes a lot of time. I think a lot of plaintiffs maybe don't understand the length of time it takes to even get that first case management order in place to even manage the litigation, how is it going to run from, you know, soup to nuts. And it may be many months or even years before a plaintiff's story is even heard or resolution takes place. I want to talk a little bit more about what we're talking about here. We're talking about how MDLs are managed, all the different negotiation of the orders that are involved, but let's talk about general and specific causation. And this is one area that I think this is the area that takes the longest to get to and to navigate to general and specific. Megan, can you dive in a little bit deeper on what I mean by general and specific causation?

Megan:

General causation within the context specifically of product liability litigation is can the product or substance, chemical, pharmaceutical, medical device, can the product at issue actually cause the injuries being alleged in general, across the entire plaintiff population? In other words, does science actually support the allegations at issue in the litigation? And that's sort of threshold number one that needs to be crossed. Threshold number two then gets to the specific litigants, the individual plaintiffs themselves, and that's specific causation. Did the product or substance, is it not only backed by science in general, but did it cause the injury being alleged by an individual based on their particular exposure and their health and genetic history?

Angela:

Okay, thinking about specific causation, and we're talking about individual plaintiffs sharing what their injuries are, their exposure. Let's talk about what the discovery process looks like in a mass tort MDL. What types of data are typically collected?

Megan:

Well, this runs on both sides. It's for the individual plaintiffs as well as for the defendants. So for the plaintiff's side, there's a multitude of information that is generally collected from the individual plaintiffs and on behalf of the plaintiffs as a whole. The first place I'll start with is interrogatories, or in MDLs, what are more commonly utilized is something called a plaintiff fact sheet or a plaintiff profile form. It's part of the MDL tool case to create a questionnaire that is applied to every plaintiff across the entire population. So it's a specific set of questions designed to get at both general and specific causation within the context of that, of the allegations in that litigation. So it may ask for information regarding demographics. It may ask for product use or product exposure. It may ask for individual injuries and documentation to support those injuries. From a defense perspective, think e-discovery. This is where defendants are asked to produce emails, possibly sales literature, product databases. They may have their own form of a defendant fact sheet. They may have depositions of company management. company researchers, sales representatives, really trying to get at what was the evolution of product development? Was there any type of awareness of any potential adverse events or injuries or risks? Were those known by key individuals at specific points?

Angela:

Megan, I know with your tenure at LMI and your experience in the industry generally, I want to set a little bit of background here and kind of lead into the next question. You've spoken at a number of conferences and hosted a number of webinars or participated in a number of webinars for groups like American Conference Institute, the Drug and Device Litigation Seminar, Product Liability Advisory Council. and the Robbie A. Litigation Law Center, just to name a few. Given your experience, and we're talking about a lot of data, a lot of data coming from a lot of different sources, how do legal teams handle this massive, and I mean massive, amount of data in mass tort cases?

Megan:

It's an excellent question, and it has evolved a lot over time. Parties have become much more savvy about how to do this effectively, and litigation support vendors have also become much more savvy about how to respond to the growing need for efficiency and cost savings in this area. And I think the short answer to that question from my perspective is, it's all about collecting the right data at the right time to get to the right resolution. So more recently, there have been a lot of trends towards something called an early census process. There are different terms applied to this. I'm going to call it an early census. But this is a very recent trend. And when I say very recent, I'm talking in the context of, you know, going back to the 1960s, when I think the trend was a little more scorched earth approach. Let's collect everything so we can figure out what we have in front of us prior to proceeding to trial or attempting to get to some type of global settlement. More recently, the trend within the last five to 10 years has been to what do we have to collect at the outset so we know just enough to make good strategic decisions to get to resolution faster and more efficiently. What information do we absolutely need at the outset to make good decisions on behalf of the entire litigation as a whole, as well as for the specific plaintiffs that are involved?

Angela:

What is astonishing here to me is that for all these years, we're talking the 1960s to fast forward, we're in 2024, there hasn't been a rule aimed at MDLs previously beyond what the federal rules of civil procedure cover that are applied to every federal case. Fast forward to 2017, an advisory committee was established to tackle this very issue. And here we are today with, I think, something that tackles how do you handle this amount of data in an MDL. One of the outcomes of these efforts of this subcommittee is federal rules of civil procedure proposed rule 16.1. Megan, you and I referenced your participation in conferences and webinars, and it is on this specific topic. Tell us more about what federal rule of civil procedure proposed rule 16.1 does. Absolutely.

Megan:

So the proposed Rule 16.1, as you denoted, focuses specifically on MDLs. And in very short summary, what it does is it provides a checklist of topics for very early consideration within a litigation, including the early exchange of essential information to establish the factual basis of those claims. So, exactly what we were just talking about. What information do we need at the very beginning in order to make good decisions throughout? Now, this rule, the rulemaking process, can be lengthy. It involves a lot of opportunity for comment from interested parties, those that are involved in this world of multi-district litigation. So, at present, the, I think, intention is for that rule to go into effect sometime at the end of 2025. But one of the biggest challenges is that no two MDLs are alike. So from a framing perspective, there's been a lot of back and forth and a lot of work and effort put into how much does this rule cover? How much does it mandate versus how much does it suggest? because there needs to be some level of flexibility still involved in each individual MDL and allowing the judge and the parties the flexibility to adopt this rule in a way that makes the most sense for the specifics of an individual MDL case.

Angela:

only nearly 60 years in the making.

Megan:

Exactly, exactly. One other thing I would like to mention here is I talked about the concept of a census process, which is, in short, a dialed back version of a plaintiff fact sheet. It's not nearly as lengthy, takes a lot less time to complete, but gets to the heart of, again, that proof of use or exposure and proof of injury. The last thing I'll mention here is just that challenges can arise with the use of third party lead generators. But I think I'll talk about that in just a couple more minutes. So we'll get back to the idea of duplication and dual representation.

Angela:

Now that we're talking about data and I'm thinking with MDLs and the establishment of MDLs, you know, like we said, nearly 60 years ago, technology plays such an important role in managing the chaos. I just picture chaos with all of this information coming at all the parties in different angles. What types of tech tools are commonly used for data collection and analysis and mass tort litigation?

Megan:

Well, I previously mentioned the concept of the plaintiff fact sheet or the plaintiff profile form. Increasingly, if you can believe it, it wasn't all that long ago that completing these interrogatories or plaintiff fact sheets, plaintiff profile forms was actually done, I'm going to say, with a paper and pencil. That also was not all that long ago. But by paper and pencil, I just mean it may have been a PDF form that was fillable that you could type into. It may have been something that was printed and filled out by hand. The point is, it was a very manual process for a very long time, which can add a lot of time trying to sort through these manually completed forms. So over the last several years, that has increasingly become an online tool. where there is a centralized platform where plaintiffs or plaintiff counsel can go to complete these forms in a manner that is designed to capture data and not just information. And what I mean by that is when someone fills out a form manually, you are capturing information, but not necessarily in a manner that it can be useful from a data harnessing perspective. Think dashboards, think visuals and graphics where you're looking at categories of data across large volumes of plaintiffs. Fast forward even more with the advent of these census processes that are designed to capture an abbreviated version More and more, those are also being utilized online so that high-level information can be captured in a manner that allows for very early reporting, analytics, data, dashboarding, to get to harness the data involved in litigation. These platforms may also have tools that allow for deficiency review. What I mean by that is, if a form isn't completed fully, or if it is completed erroneously, it can help to identify potential deficiencies in the information by identifying where a question wasn't completed fully or a blank was left. Another tool available via some of these platforms is with respect to what I just alluded to a few moments ago, which is the rising use of third-party lead generators which is an entity that goes out and collects individuals that may have a case or a claim against one or more defendants. and they go out, do a bunch of advertising, gather certain amounts of information about potential litigants or claimants, and then they create an inventory that they may or may not sell off to a plaintiff law firm or multiple plaintiff law firms. And the issue here is that sometimes they will gather data independently of other third-party lead generators and not necessarily realize that they have signed perhaps the same plaintiff up multiple times with the same law firm or across multiple law firms. So it's identifying those duplicated instances or dual representation, meaning represented by potentially more than one law firm. And some of these tech tools that are being used are putting some really interesting technology into place to help identify those early on to weed out some of those duplicated efforts or, you know, non-meritorious claims from a duplication standpoint. I want to make a quick note here about current and potential future involvement of artificial intelligence. I know in podcast one, our episode one, we took a little bit of a dive into artificial intelligence. And so I don't necessarily want to do it in this podcast, but I do want to put a pin in that to just to note that I expect to see very creative and increasing use of artificial intelligence with respect to these tech tools that are being used for data collection and management. and analysis in mass tort litigation.

Angela:

It's a great point, Megan. We definitely did do a deep dive on AI in episode one. I'd love to ask you one last question. What roles do litigation support partners play in mass tort litigation, thinking about technology and wrangling all these different things that are important to manage and lead to resolution? I'd love to hear what your thoughts are on the different roles that a litigation support partner plays.

Megan:

Great question. Litigation support partners can play a lot of roles in mass tort litigation. Anything from e-discovery to document review, record collection, analyzing medical records that may be provided to support or refute a claim. Hosting of these platforms that we're talking about for exchange of information between the parties, helping to better capture data in a way that it can be utilized for reporting and analytics and insight early in the litigation. I'm talking dashboards, management of large volumes of data, and being able to glean trends from that information. which this specifically can help the parties, but also the judges and special masters and magistrates that are trying to get their hands around the volume of information and potential structure of a settlement or trajectories on how the litigation might proceed from an early, you know, we've focused quite a bit on the parties, but certainly the judges are looking to get better insight into matters pending before them earlier and earlier in the process so they can more efficiently manage those and utilize their unique tool set to get to resolution faster. These litigation support partners can play a lot of roles and will have expertise in multiple areas from, again, e-discovery to hosting of platforms to dashboards and analytics to artificial intelligence. But I think when they are best utilized and where I think I'd like to leave this episode is to say that the really good vendors and the trusted vendors can serve as, I like the word you use, partner. They are not just a vendor, they can be a partner and really become part of the discovery team, the litigation management team to help help and collaborate with the parties on how best to do what they are experienced in. So I would say the best vendors are those that can become part of the team and can really collaborate and partner with their clients to get to resolution faster, more cost effectively, and more efficiently.

Angela:

I'd like to thank Megan for being our guest on today's episode, as well as you, our listeners. If you enjoyed the show, subscribe to Litigate with Insight, the LMI podcast, on your favorite podcast app, share it with your colleagues, or on LinkedIn. You can learn more about LMI at lmiweb.com. This has been a co-production of Evergreen Podcasts and LMI. Special thanks to our contributor, Kaylee Sabnick. Our producers are Brigid Coyne and Sean Ruhl-Hoffman. Our audio engineer is Sean Rule-Hoffman. I'm your host, Angela Browning. Thanks for listening.