Multi-district litigation is the way that the great bulk of products liability cases are now handled in the federal courts. Once the Judicial Panel on Multi-District Litigation decides that MDL treatment is appropriate, the district courts, around the country, where cases have been filed, transfer their cases to the single district court judge for pre-trial consolidation. Along with the products cases, the districts will transfer related cases, such as consumer and securities fraud and medical monitoring class actions to the transferee court.
The Federal Judicial Center has recently published a “pocket guide” to describe the process of managing an MDL for products liability cases: Barbara J. Rothstein and Catherine R. Borden, Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges (2011). Link or download The guide weighs in at 53 pages with some standard, and some non-standard, guidance for judges managing MDL products liability cases. Judge Rothstein, a veteran judge in MDL products litigation, recently stepped down as head of the Federal Judicial Center.
Because there is a significant risk that your MDL judge will read the Pocket Guide, this pamphlet should be on your and your clients’ reading list. Much of the pamphlet is unexceptional, but there is some non-standard guidance, which you may want to flag for the MDL judge in early briefings. What follows are just some brief comments on the Guide.
Expert Discovery
Much of the Guide‘s discussion on expert discovery is hornbook law, but the following passage gives some novel, dubious guidance:
“You should be aware of the possibility that not only the parties’ testifying experts, but also the published research on which the experts rely, may be subject to charges of bias. For example, where parties directly or indirectly fund authors of research articles and studies that are relied upon by testifying experts, such funding may be discoverable as relevant to the issue of bias.48 In cases involving disputed evidence on causation, there will often be ongoing scientific studies addressing the disputed issue. You may need to establish procedures for discovery regarding such studies. Generally, courts protect researchers from disclosure of data or opinions relating to an ongoing unpublished study. By contrast, courts generally allow discovery into party-sponsored studies.49“
Pocket Guide at § 9.e (citations omitted). The Guide suggests that courts protect researchers from compulsory process to obtain data from “ongoing unpublished” studies, but this begs the question what should be done for studies that already have been published and are being relied upon by the parties, one side, or the other, or both, in litigation. More troubling is the Guide’s suggestion that an MDL court should unleash discovery against authors of published works for evidence of bias, with a citation to a case that ordered parties to produce lists of payments to authors of articles relied upon by expert witnesses.
The case-law support for the suggested approach is thin – just one case – and it involves serious problems. For instance, expert witnesses must itemize all studies, publications, data, and the like, which they have “considered.” The expert witnesses’ reports must give a detailed recitation of their opinions and the bases for their opinions. Does the mere appearance of an article on an expert witness’s “consideration” list trigger this invasive discovery? The Guide‘s language and citation suggest so, but there is little reason or logic to support such an inquiry. The authors of a study relied upon might appear to be more appropriate targets for this inquiry, but sometimes studies cut different ways, and an expert witness for one side or the other might reasonably rely upon some data and analyses and not others from a single study. The process contemplated by the Guide appears to dichotomize, in a simple-minded way, the entire body of research that might bear upon scientific questions in a litigation.
Second, the discovery exercise described in pamphlet raises concerns about the confidentiality of consultations made with experts who were never considered for a testifying role in litigation. These consultations may have been made with the understanding that the fact and the substance of the consultation would be confidential. Some consultants, on both sides of litigations, may be concerned about powerful superiors in their universities who are allied with litigants or their regulatory allies on one side or the other.
Third, both sides in MDL cases are likely to speak to a good number of experts in the field. The parties on all sides will generally interview experts based upon their reported views or their interest in issues that are relevant to the litigation. Before courts create lists of “tainted” scientific papers, they might well consider the timing of the authorship and whether the payments were made before or after the author in question wrote the article that is relied upon.
Fourth, there is an unfair asymmetry involved in this exercise. Many MDL cases involve one or a few defendants, and it is generally feasible for those defendants and their counsel to trace all payments made to scientists, for whatever reason. Plaintiffs’ counsel, serving on a Steering Committee, may express an inability to contact every plaintiffs’ counsel who has taken state or federal cases related to the MDL, or who has considered taking cases, and who has spoken to experts as part of their research or representations. While that claimed inability may well be real (or not), it leaves the reporting on one side incomplete, and creates prejudice to the side (usually the defense) that has the ability to provide a definitive list.
Fifth, the scope of the disclosure exercise cannot be easily and fairly circumscribed. The defendants or the Plaintiffs’ Steering Committee may not have paid any money to scientists who has worked with other litigants in other litigations. Those scientists, who are not financially tied to the parties in the particular MDL, may still have substantial biases as a result of having worked with counsel – indeed, they may be the same counsel as are involved in the MDL – but the disclosure rules obscure their biases and create an imbalanced view of who is “interested,” and who is “disinterested.” For instance, a prominent plaintiffs’ counsel on the MDL’s Plaintiffs’ Steering Committee may have worked with an expert, and even may have encouraged that expert to publish on a topic that would affect a wide array of litigations, including the MDL where discovery is proposed into the expert’s “biases.” If the expert, however, had no engagement for the MDL itself, the association with plaintiffs’ counsel in other cases would appear to immunize this expert from discovery into payments and biases.
Sixth, the suggested procedure will not bring in information from plaintiffs’ counsel, whose cases are filed only in state courts, and who are thus not subject to orders of the MDL court. The state court plaintiffs could work up any number of consulting expert witnesses, and have them publish extensively on the MDL issues, but the federal MDL court’s discovery will not reveal the subterfuge. The practice of the state court consultations will be “privileged” under most states’ rules on expert witnesses. The defendants, of course, will be in both state and federal courts, and thus all their consulting expert witnesses will be subject to discovery.
The Guide‘s suggestion does not appear to have been thought through very carefully.
Attorney Fees
Who can be against attorney’s fees, but common-benefit funds raise some thorny cy pres problems when the MDL has wound down:
“In a large MDL, many courts appoint common benefit fee committees, charged either with auditing and recommending common benefit compensation requests, or determining the final allocation of a common benefit fee award among the competing common benefit attorneys.”
Pocket Guide at § 4.b.
The discussion of common-benefit funds could benefit from discussing some of the mechanics of ensuring that monies in the funds are returned to claimants at the conclusion of the litigation to avoid improprieties, such as have been seen in MDL 926, In re Silicone Gel Breast Implants Litigation. See SKAPP A LOT (April 30, 2010).
Name that MDL
The Pocket Guide has no suggestions about how to name the MDL, but while I am whining, here is another complaint: why are product MDLs typically given names like: In re Widget Products Liability Litigation? Doesn’t this prejudge the issue in a way unfairly to the defendant? Every videotaped deposition will begin with a statement from the videographer to the effect that the deposition is being taken in the Widget liability litigation, or something like that. Why aren’t these MDLs named: In re Widget Safety Litigation? Or, In re Widget Alleged Product Liability Litigation? The names are already a mouthful; they should at least be fair.
