10. Discovery Planning

• Pages: 199-222
• Author: Joan S. Dinsmore,Nicholas J. Hoffman,Susan Oaks Little

10

Discovery Planning

Joan S. Dinsmore, Nicholas J. Hoffman, and Susan Oaks Little1

Each disease outbreak may be unique, but several investigative

and discovery tools can be adapted to organize a thorough and

methodical approach for plaintiffs’ and defense counsel. As with

many large or complex cases, designing and planning a thought-

ful approach to investigation and discovery will provide counsel

with an efcient means of gathering the evidence necessary to

present the case at trial. This chapter highlights the key drivers

and components of a discovery plan in which plaintiffs have

alleged harm from an infectious disease outbreak.

With the recent COVID- 19 pandemic, terms such as vector, con-

tact tracing, and mode of transmission entered the daily lexi-

con. Although these terms may have been new to the average person,

they are key public health and epidemiology concepts and form the

foundation of information gathering and investigation during out-

break litigation.

1. Joan Dinsmore is a litigation partner at McGuireWoods LLP. Nicholas Hoffman

is a litigator at McGuireWoods LLP. Susan Oaks Little is a Physician Assistant and

Case Analyst at McGuireWoods LLP.

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An attorney tracing an outbreak in the context of contemplated,

threatened, or led litigation may not have quite the resources uti-

lized by world governments to investigate a pandemic, but the fun-

damentals are the same: determine who has been impacted, identify

potential pathways for the virus, bacteria, or other pathogen, and

thereby determine what that means for your client’s case.

It is always surprising, even for seasoned outbreak litigation

attorneys, how much can be learned about an outbreak through

old- school gumshoe work of obtaining and examining documents,

acquiring laboratory and testing data, interviewing witnesses, and

culling through medical records. This evidence can be critical to both

plaintiffs and defendants in terms of proving or disproving general

and specic causation.

This chapter examines three key aspects of discovery that specically

impact outbreak litigation: (1) discovery techniques for pathogen track-

ing, including how to track an outbreak as a whole, (2) identifying infor-

mation suggestive of one or more likely transmission pathways, and

(3) collecting and reviewing medical records specic to the outbreak.

We note several general concepts apply to this entire chapter (e.g.,

do not delay in obtaining discovery, keep organized, and prioritize

your pursuit of key documents). These may seem like Discovery 101,

but in complex outbreak litigation, these general principles are more

important than ever.

Q&A on Discovery of Plaintiffs and Other Patients

Discovery takes on added importance in outbreak litigation. Unlike a

lawsuit involving a single incident like a car crash, outbreak litigation

typically involves a series of incidents, namely, multiple transmissions

of the same pathogen.

Each of these transmissions results in a separate outbreak patient.

The rst known individual exposed to the pathogen (within the

given population or epidemiological study) is commonly referred to

as the index case or patient zero. After patient zero, the pathogen

may have passed to any number of other individuals, who them-

selves may have transmitted it to others, and so on.

A lawsuit might be brought by any of the individuals along the

chain of transmission, and often includes a group of those affected.

200 Infectious Disease Litigation

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